Kerala High Court
M.Jayaprakash vs M/S.Sauhardha Kuries And Loans (P) Ltd on 29 July, 2011
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 1709 of 2011(O)
1. M.JAYAPRAKASH, S/O.MARUTHUR KALATHIL
... Petitioner
Vs
1. M/S.SAUHARDHA KURIES AND LOANS (P) LTD.,
... Respondent
For Petitioner :SRI.C.A.CHACKO
For Respondent :SRI.A.T.ANILKUMAR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :29/07/2011
O R D E R
THOMAS P JOSEPH, J.
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O.P(C).No.1709 of 2011
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Dated this 29th day of July, 2011
JUDGMENT
The first judgment debtor in E.P.No.304 of 2007 in O.S.No.1316 of 1991 of the Court of learned Sub Judge, Thrissur is the petitioner before me challenging Ext.P3, order dated March 29, 2011 in E.P.No.304 of 2007 issuing warrant of arrest to the petitioner for realisation of the decree amount on a finding that in spite of having sufficient means, petitioner has neglected and refused to pay the amount. Learned counsel submitted that the finding of the executing court is not correct. Alternatively, it is requested that petitioner may be permitted to pay the balance decree amount alteast in ten installments. Learned counsel for respondent/decree holder contends that the finding is justified on the material on record and no interference is required.
2. As regards the means of petitioner, representative of respondent gave evidence as PW1. PW2 is the Secretary of Adatt Grama Panchayath who proved Ext.A1. Contra evidence was given by petitioner as DW1. From the evidence on record it is revealed that petitioner has obtained license from the Adatt Grama Panchayath for conducting a statutory business under the O.P(C).No.1709 of 2011 -: 2 :- name and style, 'Vasantham Fancy Centre'. That, such license has been issued to the petitioner is admitted by him when examined as DW1. According to the learned counsel, merely for the reason that petitioner is having a license it does not mean that he has sufficient means. But I am unable to accept that argument in the light of the decision in Kuppuswamy v. P.G. Menon (1992(2) KLT 203). In that decision, it is stated that though the burden of proving the circumstances specified in Sec.51 Code of Civil Procedure (for short, "the Code") lies on the decree-holder, strict proof of every details is not necessary. The decree-holder should give some indication or details of properties or assets of the judgment debtor. It is competent to the executing court on the materials placed before it, to draw an inference as regards the statutory requirements under Sec. 51 of the Code. Here, evidence on record shows that petitioner is the licensee of a shop and is running business. On that evidence, executing court is correct in issuing warrant of arrest to the petitioner.
3. So far as the request for payment of the amount in installments is concerned, learned counsel has submitted that as directed by this Court `.10,000/- has already been deposited in the executing court. I have heard learned counsel for respondent O.P(C).No.1709 of 2011 -: 3 :- also as regards request for installment facility. Having heard learned counsel on both sides I am inclined to permit petitioner pay the balance amount in monthly installment beginning from 01.09.2011 but subject to condition.
Resultantly this original petition is disposed of in the following lines:
(i) While concurring with the finding entered by the executing court that petitioner has sufficient means, he is permitted to pay the amount due under the decree in eight (8) equal monthly installments subject to the following conditions:
(a) Petitioner shall pay the balance amount due under the decree in eight equal monthly installments beginning from 01.09.2011 provided that by the last installment the entire amount due is paid.
(b) The amount due shall be either paid to the first respondent or deposited in the executing court for payment to the respondent on or before 5th of each month and in case that day happens to be a holiday, such deposit/payment shall be made on the next working day.
(c) In case of default in payment of any two installments, it will be open to the respondent to proceed with personal execution against the petitioner pursuant to the finding O.P(C).No.1709 of 2011 -: 4 :- regarding means without any further enquiry regarding means.
(d) The warrant of arrest issued to the petitioner will stand in abeyance during the said period of eight months or till default as above stated is committed, whichever is earlier.
(e) Any amount deposited by petitioner
could be withdrawn by the respondent.
(THOMAS P JOSEPH, JUDGE)
Sbna/-