C.O.George vs Pradeep on 7 June, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 15066 of 2010(O)


1. C.O.GEORGE, S/O.C.K.OUSEPH, AGED 49
                      ...  Petitioner

                        Vs



1. PRADEEP, S/O.MANI, AGED 34 YEARS,
                       ...       Respondent

                For Petitioner  :SRI.SANTHEEP ANKARATH

                For Respondent  :SRI.R.PARTHASARATHY

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :07/06/2010

 O R D E R
                             THOMAS P. JOSEPH, J.

                            --------------------------------------
                             W.P.(C) No.15066 of 2010
                            --------------------------------------
                       Dated this the 7th day of June, 2010.

                                      JUDGMENT

The holder of decree in O.S.No.618 of 2002 of the court of learned

Munsiff, Chittur, transmitted to the court of learned Additional Munsiff-II, Thrissur

is the writ petitioner. Petitioner filed E.P.No.2370 of 2004 for realisation of

Rs.1,08,570/- and a warrant of arrest was issued to the respondent. Amin

deputed from the court arrested respondent/judgment debtor and reported that

the entire amount stated in the warrant is realised . Thereon learned Additional

Munsiff closed the execution petition. According to the petitioner only Rs.15,633/-

was realised and rest of the amount was to be realised. Hence this Writ

Petition.

2. It is not disputed that the amount due as per execution petition was

Rs.1,08,570/- and that the amount realised on the warrant of arrest was only

Rs.15,633/-. As such executing court was clearly in error in closing the execution

petition stating that the amount mentioned in the warrant has been realised.

3. Learned counsel for respondent contended that petitioner can file a

fresh execution petition. According to the learned counsel he did not get

opportunity to challenge the order issuing warrant of arrest. But that order was

not challenged by respondent at the appropriate time. I do not think it proper

WP(C) No.15066/2010

2

or necessary to direct petitioner to file a fresh execution petition for, on the facts

and circumstances of the case there was no fault on the part of petitioner and

the mistake was committed by the executing court.

Resultantly, this Writ Petition is allowed and Ext.P2, order under challenge

in this Writ Petition is set aside. Executing court is directed to proceed with

execution of the decree as prayed for in E.P.No.2370 of 2004.

THOMAS P.JOSEPH,
Judge.

cks