Kerala High Court
V.A.Kurian vs Vaikom Taluk Employees Co-Operative ... on 2 November, 2016
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 26TH DAY OF SEPTEMBER 2017/4TH ASWINA, 1939
OP(C).No. 2991 of 2016 (O)
AGAINST THE ORDER IN EP NO.70/2015 IN ARC.NO.898/2013 OF THE MUNSIFF'S
COURT, VAIKOM DATED 2.11.2016
PETITIONERS:
1. V.A.KURIAN
VETTUVAYHIYIL,
ERAVIMANGALAM,
MUTTACHIRA.
2. SABU JOSEPH,
NEDUNILATHIL,
KOTHANALLUR.
BY ADVS.SRI.M.RAMASWAMY PILLAI
SMT.PREETHY R. NAIR
RESPONDENTS:
1. VAIKOM TALUK EMPLOYEES CO-OPERATIVE SOCIETY
LTD.NO.K.415, REPRESENTED BY ITS SECRETARY,
T.B. MOHANDAS, PIN 686 141.
2. V.C.JOSEPH,
VALLAMTHOTTATHIL,
KOTHANALLOOR - 686 141.
R1 BY ADV. SRI.V.G.ARUN
R1 BY ADV. SRI.T.R.HARIKUMAR
THIS OP (CIVIL) HAVING BEEN FINALLYHEARD ON 26-09-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 2991 of 2016 (O)
APPENDIX
PETITIONERS' EXHIBITS
EXHIBIT P1 THE PHOTOCOPY OF THE AWARD PASSED BY THE CO-OPERATIVE
INSPECTOR (ARBITRATION AND EXECUTION).
EXHIBIT P2 THE PHOTOCOPY OF E.P.NO.70 OF 2015 BEFORE THE MUNSIFF'S
COURT, VAIKOM.
EXHIBIT P3 THE PHOTOCOPY OF THE AFFIDAVIT FILED BY THE FIRST
RESPONDENT.
EXHIBIT P4 THE PHOTOCOPY OF THE AFFIDAVIT FILED BY THE SECOND
RESPONDENT.
EXHIBIT P5 THE PHOTOCOPY OF THE ORDER DATED 2.11.2016.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
AHZ/
P.Somarajan, J.
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O.P.(C) No.2991 of 2016
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Dated this the 26th day of September, 2017
JUDGMENT
Challenging the order dated 2.11.2016 in E.P.No.70 of 2015 in ARC.No.898 of 2013 of the Munsiff's Court, Vaikom, the judgment debtors 2 and 3 came up with this Original Petition under Article 227 of the Constitution of India. The Execution Petition was filed for recovery of the amount due under an award passed against judgment debtors 1 to 3. The first judgment debtor is the principal debtor and judgment debtors 2 and 3 are the sureties/guarantors. An award was passed against the judgment debtors for recovery of an amount of Rs.98,952/- along with interest. It was put in execution. Warrant of arrest was issued by the Munsiff's Court against the judgment debtors under the impugned order on entering into a finding that they had sufficient means to pay the amount. The main contention raised by the decree holder is that the second judgment debtor is having immovable property and as such he is having sufficient means to pay the decree amount/award amount. The second judgment debtor joined hands with the third judgment debtor and filed this Original Petition under Article 227 of the Constitution of O.P.(C) No.2991 of 2016 :: 2 ::
India pleading that they have no means to pay the amount due under the award. The factum of having immovable property in the name of second judgment debtor is not disputed. No material infirmity much less any infirmity was brought to the notice of this Court so as to have an interference under Article 227 of the Constitution of India and hence the present petition fails and deserves only a dismissal.
2. At the fag end of the arguments, the learned counsel for the petitioners submitted that they are prepared to pay the amount in instalments. It is also submitted that an amount of Rs.30,000/- was already deposited, but it was denied by the learned counsel appearing for the decree holder. It is made clear that it is for the execution court to decide whether an opportunity can be given to the petitioners for making the payment in instalments.
Without prejudice to the above said right, the present Original Petition is hereby dismissed. No order as to costs.
P.Somarajan Judge ahz/