High Court Kerala High Court

R.Muralidharan vs Thathamangalam Service … on 17 November, 2008

Kerala High Court
R.Muralidharan vs Thathamangalam Service … on 17 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 30668 of 2008(A)


1. R.MURALIDHARAN, S/O.N.RAMAKRISHNAN,
                      ...  Petitioner

                        Vs



1. THATHAMANGALAM SERVICE CO-OPERATIVE
                       ...       Respondent

                For Petitioner  :SRI.JACOB SEBASTIAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :17/11/2008

 O R D E R
               K.P. Balachandran, J.
            --------------------------
             W.P.(C)No.30668 of 2008 A
            --------------------------

                     JUDGMENT

Petitioner, who is the judgment debtor in E.P.

No.132/07 pending on the file of the Sub Court,

Palakkad, has sought to get set aside the order

dated 18.9.2008 in the said EP. Order dated

18.9.2008 reads thus:

“Today no payment. Repeat arrest
warrant to the respondent.”

From the above order, it can be understood that

warrant had been issued earlier and some payments

were made and it is for reason of not making any

payment on subsequent posting date that arrest

warrant was ordered to be repeated.

2. It is contended before me by the learned

counsel for the petitioner that even while ordering

warrant in the first instance, there was no order

passed by the execution court pursuant to the

WPC 30668/08 2

objection of the petitioner regarding no means.

According to him, no order issuing warrant could

have been passed without an order entering a

finding in favour of the petitioner/judgment debtor

regarding his means. The records produced along

with this writ petition show that on 11.8.2006, the

petitioner has deposited Rs.80,000/- in

Thathamangalam Service Co-operative Bank, which is

the decree holder bank; that thereafter on

3.9.2008, just after three weeks, he has made a

deposit of another Rs.24,000/- and that on the very

next day, namely on 4.9.2008, he made two deposits

respectively of Rs.20,000/- and Rs.10,000/- and

those are evidenced by Exhibit P4 series photostat

copies of receipts. These itself would show that he

is one who is having means. If at all there is any

serious contention raised by the petitioner that at

present he has no means, viz., after 4.9.2008 or

even earlier to those deposits, he should have

stated the reasons as to why Exhibit P4 series do

WPC 30668/08 3

not evidence his financial affluence and why he

contends that he is having no means to discharge

the balance debt. If at all the petitioner files

objection before the execution court explaining all

these, the court may enter a finding as regards

his means before issuing warrant. Till such an

objection is filed, petitioner is not entitled to

any relief. If such a detailed objection is filed

and that appears to have any merit on the

application of the petitioner, the execution court

may withdraw the warrant and conduct an enquiry

into the plea of “no means” and pass appropriate

orders. Till then, warrant cannot be kept in

abeyance or the impugned order cannot be set aside.

The writ petition is disposed of as above.

17th November, 2008 (K.P.Balachandran, Judge)
tkv