Babu vs Aluva Mercantile Credits Pvt. Ltd
2022 Latest Caselaw 2321 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
         WEDNESDAY, THE 2ND DAY OF MARCH 2022 / 11TH PHALGUNA, 1943
                           OP(C) NO. 412 OF 2022
AGAINST THE ORDER DATED 11.02.2022 IN E.A.NO.80/2021 IN EP 79/2019 IN OS
                     861/2014 OF MUNSIFF COURT, ALUVA
PETITIONER/1ST JUDGMENT DEBTOR/1ST DEFENDANT:

             BABU
             AGED 48 YEARS
             S/O.KURIAKOSE, PARAYIL HOUSE,
             ASOKAPURAM, ALUVA EAST VILLAGE,
             ERNAKULAM DISTRICT - 683 101
             BY ADVS.
             BIJU .C. ABRAHAM
             MATHEWS K. UTHUPPACHAN


RESPONDENTS/DECREE HOLDER/PLAINTIFF & 2ND JUDGMENT DEBTOR/DEFENDANTS:

     1       ALUVA MERCANTILE CREDITS PVT. LTD.
             REPRESENTED BY ITS MANAGER JOSE,
             S/O.THOMAS AGED 69 YEARS,
             PUTHUSSERY HOUSE, THOTTUMUGHAM KARA - 690 519
     2       MOLSY BABY,
             W/O.BABY, AGED 40 YEARS,
             PARAYIL HOUSE,
             ASOKAPURAM, ALUVA EAST VILLAGE,
             ERNAKULAM DISTRICT - 683 101

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 412 OF 2022
                                         2


                                  JUDGMENT

Dated this the 2nd day of March, 2022

This Original Petition has been filed by the first judgment

debtor in E.P.No.79/2019 in O.S.No.861/2014 on the files of the

Munsiff Court, Aluva under Article 227 of the Constitution of

India, seeking the following reliefs:

"i) To set aside Ext.P3 order as it is illegal.

ii) To direct the learned Munsiff Court, Aluva not to initiate any coercive steps without conducting any proper enquiry with regard to the means of the petitioner

iii) Grant such other reliefs as this Hon'ble Court may deem just and proper in the interest of justice, including costs."

2. As per Ext.P3 order, the learned Munsiff dismissed

E.A.No.80/2021 filed by the petitioners re-calling the warrant.

Going by the order, it is discernible that the judgment debtors,

given an undertaking before the execution court to discharge the

decree debt at the rate of Rs.10,000/- each per month, and on

recording the submission, the execution court closed the

execution petition with liberty to the decree-holder to revive the

same in the event the judgment debtors fail to pay the amount as OP(C) NO. 412 OF 2022

agreed. However, later, the petitioner herein failed to pay the

amount as agreed and thereafter, on the application filed by the

decree-holder, the execution petition was revived, and

consequently, the arrest warrant was issued against the

judgment debtors.

4. It is submitted by the learned counsel for the

petitioner that the petitioner is having landed property and when

he attempted to sell the property, the said attempt became futile.

Therefore, he could not discharge it. Though the learned counsel

for the petitioner raised plea of no means while filing this Original

Petition, it seems that he had not taken such a contention before

the execution court while raising plea for installment facility. His

means, in fact, not challenged before the execution court. The

submission of the learned counsel for the petitioner that the

petitioner's attempt to sell his own landed property to discharge

debt would fortify the fact that the petitioner is having means to

discharge the decree debt.

5. In fact, the order of the execution court does not suffer

from any illegality, perversity or arbitrariness. It appears that the

first judgment debtor is not ready to pay the decree debt even OP(C) NO. 412 OF 2022

though he was given an opportunity to pay it off by way of

installment, in a case admittedly he has means to pay off the

decree debt. Hence, I am not inclined to intervene the above

order.

Accordingly, this petition stands dismissed.

Sd/-

A. BADHARUDEEN JUDGE

nkr OP(C) NO. 412 OF 2022

APPENDIX OF OP(C) 412/2022

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE COMPROMISE AGREEMENT DATED 22.06.2018 ENTERED BETWEEN THE PARTIES EXHIBIT P2 TRUE COPY OF THE PETITION DATED 24.09.2021 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, ALUVA EXHIBIT P2(a) TRUE COPY OF THE OBJECTION DATED 05.10.2021 IN EXT.P2 PETITION EXHIBIT P3 TRUE COPY OF THE ORDER DATED 11.02.2022 IN E.A.NO.80/2021 IN EP NO.79/2019 IN O.S.NO.861/20114 ON THE FILES OF THE MUNSIFF COURT, ALUVA