IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 829 of 2010()
1. D.PRABHAKARAN, S/O.VADEED, AGED 56 YEARS
... Petitioner
Vs
1. PUSHPARAJA S.@ KUTTAPPAN
... Respondent
For Petitioner :SRI.R.MANOJ
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :23/11/2010
O R D E R
THOMAS P. JOSEPH, J.
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O.P.(C) No.829 of 2010
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Dated this the 23rd day of November, 2010.
JUDGMENT
Petitioner is the judgment debtor in E.P.No.441 of 2008 in O.S.No.361 of
2007 of the court of learned Principal Munsiff, Thiruvananthapuram.
Respondent obtained a money decree against petitioner and sought personal
execution. Since petitioner remained absent in the execution proceeding, based
on Ext.P1(a) affidavit of the respondent executing court found means and
ordered warrant of arrest against petitioner. Petitioner filed Ext.P4, application
to set aside the exparte order against him in execution and Ext.P4(a), application
to condone the delay. Petitioner also filed Ext.P4(b), application stating that the
decree amount may be realised from his salary. Petitioner claimed that in the
meantime he had made certain payments to the respondent. On 31.08.2010
executing court passed Ext.P5, order which is a consent order as per which
petitioner was permitted to pay the decree amount in monthly installments at the
rate of Rs.10,000/- beginning from September (2010) and making it clear that
the amount shall be paid on or before the 8th of each month. It was also
directed that in the event of default of two consecutive installments, respondent
could recover the amount in lump. In the meantime based on a letter dated
07.10.2010 from the learned Principal Munsiff, Thiruvananthapuram, the
Government issued a memo dated 12.10.2010 directing that petitioner is relieved
of his duties in the Administrative Secretariat with immediate effect to facilitate
his arrest as per direction of the Principal Munsiff in in the order dated
OP(C) No.829/2010
2
08.09.2010 in E.P.No.441 of 2008. Learned counsel submits that proceedings
are vitiated since petitioner has been permitted to pay the amount in installments
vide Ext.P5, order.
2. If challenge is to the memo dated 12.10.2010 issued by the
Government it could not be under Article 227 of the Constitution. Petitioner has
to challenge that memo independently under Article 226 of the Constitution if
petitioner is entitled to that course otherwise. It is open to the petitioner to
move the executing court for stay of the order issuing warrant of arrest to him in
view of Ext.P5, order which permitted petitioner to pay the amount in
installments and since issue of warrant of arrest arises only when the condition
imposed on petitioner vide Ext.P5, order is not complied. Hence leaving
petitioner to appropriate remedy as above stated, this petition is closed.
THOMAS P.JOSEPH,
Judge.
cks