V.K. Mohammed vs T.K. Humyoon

Thomas P. Joseph, J.—Judgment debtor in E.P. No. 165 of 2007 in O.S. No. 283 of 1995 of the court of learned Principal Sub Judge, Thalassery is the Petitioner before me challenging order dated 06.08.2010 finding means for Petitioner and issuing warrant for his arrest for non-payment of decree amount. Learned Counsel contends that there is no acceptable evidence regarding means of Petitioner and that on two prior occasions execution petition was dismissed on account of failure of Respondent to prove means of Petitioner.

Petitioner has suffered a decree for payment of money to the Respondent. The latter sought personal execution and his Power of Attorney has given evidence as P.W.1. Exhibit A1 is an information obtained from the office of District Lottery Officer, Kozhikode pursuant to a query under the Right to Information Act as to the business of Petitioner. Exhibit C1 is the report of Advocate Commissioner. Petitioner gave evidence as R.W.1 and proved Ext.B1 series. Exhibit B1 series are produced to show that building where Petitioner is allegedly doing business is demised in favour of his son.

It is seen from Ext.A1 that Petitioner is engaged in wholesale lottery business at various places in Kannur town. It is also revealed that for the period from 12.11.2007 to 12.11.2008 he deposited Rs. 60 lakhs and for the period from 21.06.2008 to 20.06.2009, Rs. 40 lakhs as security with the District Lottery Officer. It is also revealed that he purchased lottery tickets in August, 2008 for Rs. 5,95,019 and got Rs. 2,56,086/- by way of commission. Advocate Commissioner has reported about the places where Petitioner is conducting wholesale lottery business in Kannur town. Petitioner when examined as R.W.1 stated that he was conducting VeeKay Lottery Agencies at Kannur and that he was its wholesale agent. He also admitted that he had three lottery stalls in Kannur town. In the light of that evidence court below found that Petitioner has sufficient means to discharge the decree debt. It is not disputed that amount due under the decree has not been paid. Hence the finding entered by the court below that Petitioner is having sufficient means requires no interference.

Learned Counsel at this stage made a fervent plea that Petitioner may be permitted to pay the amount due under the decree in installments. But I am not inclined to accept that request since evidence of Petitioner shows that he is sufficiently affluent to discharge the decree debt. Having regard to facts and circumstances of the case and to enable Petitioner discharge liability, one month''s time can be given to him. I am also inclined to direct that warrant of arrest shall be kept in abeyance for the said period.

Resultantly, this Writ Petition is dismissed. But Petitioner is granted one month''s time from this day to discharge the decree debt. Warrant of arrest issued against Petitioner shall remain in abeyance for the said period. In case the entire liability is not discharged within the above said period it is open to the execution court to proceed with execution without any further enquiry as to the means of Petitioner.