Babu vs Aluva Mercantile Credits Pvt. Ltd
2022 Latest Caselaw 2323 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. 417 OF 2022
AGAINST THE ORDER DATED 11.02.2022 IN EA 79/2021 IN E.P.NO.80/2019 IN OS
                     862/2014 OF MUNSIFF COURT, ALUVA
PETITIONER/FIRST JUDGMENT DEBTOR/FIRST DEFENDANT:

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

RESPONDENTS/RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTOR/ PLAINTIFF/
DEFENDANTS NO.2:

     1       ALUVA MERCANTILE CREDITS PVT. LTD
             REPRESENTED BY ITS MANAGER HOUSE,
             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. 417 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.80/2019 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.79/2021 filed by the petitioner re-calling the warrant.

Going by the order, it is discernible that the petitioner herein,

being the first judgment debtor, given an undertaking before the

execution court to discharge the decree debt at the rate of

Rs.20,000/- per month, and on recording his submission, the

execution court closed the execution petition with liberty to the

decree-holder to revive the same in the event the first judgment

debtor fails to pay the amount as agreed. However, later, the OP(C) NO. 417 OF 2022

petitioner 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

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 OP(C) NO. 417 OF 2022

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. 417 OF 2022

APPENDIX OF OP(C) 417/2022

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 ORDER DATED 11.2.2022 IN E.A.NO.79/2021 IN E.P.NO.80/2019 IN O.S.NO.862/2014 ON THE FILES OF THE MUNSIFF COURT, ALUVA