Krishnan Nadar v. L. Vijyakumar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 WP(C).No. 16084 of 2008(M) -------------------------{IN EA 1252/07,EP316/06 IN OS.124/2005 OF THE PRL.SUB COURT, TRIVANDRUM} .................... PETITIONER(S): --------------- KRISHNAN NADAR, S/O PONNU NADAR, K.J.NIVAS, VENNIYOOR, VENGANOOR, NOW RESIDING AT KALLUKUTHIVILAMEKKARAKUPUTHEN VEEDU, VENNIYOOR, VENGANOOR. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SMT.KVP.JAYALEKSHMY RESPONDENT(S): --------------- L.VIJYAKUMAR, KUTHIRAVATTOM, THEKKEVILAKATHU VEEDU, NEMOM, EDAKKODU DESOM, PALLICHAL VILLAGE. BY ADV. SRI.K.B.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C).No. 16084 of 2008 :: 2 ::** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - EXT.P1: TRUE COPY OF THE E.P.NO.316/2006 ON THE FILE OF THE SUB COURT, THIRUVANANTHAPURAM. - EXT.P2: TRUE COPY OF THE E.A.NO.1252/2007 IN E.P.NO.316/2006 ON THE FILE OF THE SUB COURT, THIRUVANANTHAPURAM. - EXT.P3: TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER IN E.P.NO.316/2006. - EXT.P4: TRUE COPY OF THE CERTIFICATE NO.F3-688/07 DATED 03.12.2007 ISSUED BY THE AGRL. UNIVERSITY OF KERALA TO THE PETITIONER. - EXT.P5: TRUE COPY OF THE ORDER IN E.A.NO.1252/2007 IN E.P.NO.316/2006 IN O.S.NO.124/2005 DATED 1ST MARCH, 2008. ## **RESPONDENTS' EXHIBITS: NIL** //true copy// P.S. To Judge SK/- ## **S.S.SATHEESACHANDRAN, J. ------------------------------------------------** ## **W.P.(C) No.16084 of 2008** ## **----------------------------------------------Dated this the 8[th] day of February, 2010** ## **JUDGMENT** Judgment debtor in E.P.No.316/06 in O.S.No.124/05 on the file of the Sub Court, Thiruvananthapuram has filed this writ petition. Ext.P5 order passed by the learned Sub Judge directing issue of warrant against him for realisation of the decree debt, negativing his plea of no means, is challenged in this writ petition. 2. The learned Munsiff, after examining the materials produced by both sides, the decree holder and the judgment debtor, came to the conclusion that the petitioner/judgment debtor has means to pay the decree debt and thereupon ordered for issuing warrant against him. Propriety and correctness of that order, Ext.P5, is impeached invoking the visitorial jurisdiction vested in this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. No material whatsoever has been produced by the decree holder to ## **W.P.(C) No.16084 of 2008** **:: 2 ::** show that the petitioner/judgment debtor since the date of the decree has the means to pay the amount of the decree or a substantial portion thereof and has refused or neglected to pay the same, is the submission of the learned counsel for the judgment debtor. Relying on **Ramatheerthan v. R.T.O. Trivandrum {1980 K.L.T. 374}** , the learned counsel for the judgment debtor contended that only in a case where it is established that the judgment debtor proceeded against in execution of a decree has means or has money to pay the decree debt, a warrant for his arrest can be issued by the Civil Court. The execution court, without adverting to that essential factor, which has to be satisfied in the issue of a warrant against the judgment debtor ,has passed Ext.P5 order, which, according to the learned counsel, is liable to be interfered with, exercising the extraordinary jurisdiction vested with this court. On the other hand, decree holder submitted that the petitioner/judgment debtor was a ## **W.P.(C) No.16084 of 2008** **:: 3 ::** permanent employee in the Agricultural College, Vallayani, Thiruvananthapuram and after his retirement he is profitably engaged as a document writer. He has a document writer's licence and he is attending the office of a licensed document writer as borne out by his own admission on examination before the court below, according to the learned counsel. After his retirement, he has also collected his gratuity and pensionary benefits, a substantial sum, is the case of the decree holder, which, however, is disputed by the learned counsel for the petitioner. 4. Perusing Ext.P5 order, it is seen that both the decree holder and also judgment debtor got themselves examined to substantiate the rival case canvassed by them before the execution court. The learned Munsiff, who had opportunity to watch the demeanour of the witnesses found, the testimony of the decree holder reliable and convincing. Admittedly the judgment debtor ## **W.P.(C) No.16084 of 2008** **:: 4 ::** is a retired farm labourer in Agricultural College. He is attending to a document writer's office and engaging himself as a document writer. He possesses a licence for writing document for presentation before the Registrar's Office. It is a circumstance indicating that he is getting income which is more than sufficient to meet his livelihood. Apart from his engagement as a document writer, being a retired farm labourer from a Government institution, he could be expected to collect his pension as well. In that factual backdrop, the plea of 'no means' canvassed by the said judgment debtor can never be accepted. Further more, the burden cast upon the decree holder, when a plea of 'no means' is raised to resist the execution of a decree is very little. He need only assert that the judgment debtor is possessed of sufficient means; and, when he has mounted the box and given evidence challenging the plea of 'no means' by the judgment debtor, the burden shifts on the judgment debtor to ## **W.P.(C) No.16084 of 2008** ## **:: 5 ::** establish that he lacks 'means' to pay the decree debt. On the materials placed and the circumstances presented, the conclusion formed by the learned Munsiff that the judgment debtor is possessed of the means and, still, defaulted payment is unassailable. 5. Learned counsel for the judgment debtor requested for an opportunity to discharge the decree debt in instalments. No doubt, in execution proceedings over a money decree, plea for discharge of the decree debt in instalments can be granted only with the approval of the decree holder. Counsel for the decree holder has no objection in giving instalment facility, provided substantial amount is initially remitted by the judgment debtor. 6. Considering that the decree debt due as and when Ext.P4 order was passed was more than Rs.1,36,000/-, I find that the request to discharge the decree debt in instalment can be extended to the judgment debtor only on condition of depositing a portion ## **W.P.(C) No.16084 of 2008** ## **:: 6 ::** of the decree debt at the first instance. The judgment debtor shall deposit Rs.25,000/- towards the decree debt within one month from the date of this judgment as a condition precedent for having an instalment facility to discharge the balance amount due under the decree at the rate of Rs.10,000/- per month, so that the entire decree debt is discharged in 12 equal monthly instalments. In case on the 12[th] instalment, the balance amount due under the decree is found to be more than Rs.10,000/- he shall remit the entire sum, irrespective of the amount of instalment fixed. Subject to the deposit of Rs.25,000/- within the period fixed above, the instalment payment shall start from the month of April, 2010 onwards. The instalment as above shall be paid on or before the 5[th] of every month, and in case the 5[th] of the month happens to be a holiday, he shall positively tender the amount on the next working day. In the event of default of any instalment as ordered, it is open to the ## **W.P.(C) No.16084 of 2008** ## **:: 7 ::** decree holder to proceed with the execution to realise the amount outstanding as a whole. In the event of default in tendering initial deposit of Rs.25,000/- or of any instalment, the court below shall straight away issue warrant on such a request being made by decree holder intimating the default in payment. Subject to the above directions, the writ petition is closed. Sd/- **(S.S.SATHEESACHANDRAN) JUDGE** SK/- //true copy//