IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 256 of 2010()
1. VIDHYADHARAN
... Petitioner
Vs
1. MAHARASHTRA APEX CORPORATION LTD & ORS
... Respondent
For Petitioner :SRI.T.GOPALAKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :24/05/2010
O R D E R
THOMAS P.JOSEPH, J.
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C.R.P. No.256 of 2010
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Dated this the 24th day of May, 2010
O R D E R
Judgment No.3 in E.P. No.22 of 2004 in A.P. No.39 of 1996
before the Arbitrator, A.S.N. Hebbar, Manipal being executed in the
court of First Additional District Court, Kollam is the petitioner
before me. Petitioner and respondent Nos.2 and 3 availed loans
from respondent No.1/decree holder with each of them standing
surety to other. There was non-payment of the amount and
consequent to that at the initiative of respondent No.1 a sole
Arbitrator was appointed. He has passed award in favour of
respondent No.1 which is sought to be executed in the court of
learned First Additional District Court, Kollam. Petitioner has a
contention that there was no notice of arbitration proceeding
leading to the award but that is not a matter which the petitioner
could successfully raise in the execution court.
2. Challenge is to the order of learned Additional District
Judge that petitioner has sufficient means to discharge the decree
debt but he has wilfully failed to do so. One contention raised by
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petitioner is that respondent Nos.2 and 3 who have sufficient
means are not being proceeded against. That is not a contention
which the execution court can entertain. It is for the respondent
to decide which of the judgment debtors is to be proceeded
against.
3. So far as means of petitioner is concerned, petitioner
gave evidence as D.W.1 while Power of Attorney of respondent
No.1 gave evidence as P.W.1. It is in evidence that petitioner
retired as a Junior Superintendent from the Industrial Training
Department on 27.12.2007 and at that time he received
Rs.1,00,000/- by way of retirement benefits and another sum of
Rs.1,50,000/- as commutation of pension. His annual pension is
Rs.49,296/- as revealed from Ext.B3(a) and he is drawing a
monthly pension of Rs.4,489/- as revealed from Ext.B4. According
to the petitioner his children are studying and he has no sufficient
means to pay the decree amount. There was an earlier Writ
Petition in which petitioner had offered to pay the decree amount
in monthly installments of Rs.1,300/- each. Executing court has
considered the evidence on record and came to the conclusion
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that petitioner has sufficient means to satisfy the decree debt.
True, burden of proof is on the decree holder. But this Court in
Kuppuswamy v. P.G. Menon (1992 [2] KLT 203) has
stated that it is not as if the decree holder is required to bring in
every details and that if some evidence is produced it is for the
judgment debtor to adduce contra evidence. Having regard to
the evidence on record and circumstances brought out I find no
illegality or manifest injustice in the executing court holding in
favour of respondent No.1 that petitioner has sufficient means to
discharge the decree debt. There is no reason to interfere.
4. Executing court directed detention of petitioner in
civil prison for a period of three months in case the decree debt is
not discharged within five months and first installment is paid on
09.04.2010. Having regard to the circumstances stated and
request made I am inclined to grant the petitioner time to
discharge the decree liability. Petitioner shall discharge the
decree debt in six equal monthly installments beginning from
01.06.2010. In case there is failure to pay any two installments
it will be open to respondent No.1 to proceed with the execution
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or file fresh execution petition before the expiry of the said period
of six months on the strength of the impugned order as if
execution was stayed till then.
Civil Revision Petition is disposed of as above.
THOMAS P. JOSEPH, JUDGE.
vsv