IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24986 of 2010(O)
1. P.NADEER, AGED 56 YEARS, S/O.POOKUNJU,
... Petitioner
Vs
1. M/S.MUTHOOT LEASING AND FINANCE LTD.,
... Respondent
2. SREE RANJAN, CHIRAKKAL HOUSE,
3. K.A.ANTONY (DIED), KAZHANKATTUVILA
For Petitioner :SRI.K.ABDUL JAWAD
For Respondent :SRI.C.S.MANILAL
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :06/10/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P(C).No.24986 of 2010
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Dated this 06th day of October, 2010
JUDGMENT
This petition is in challenge of Ext.P4, order finding means
of petitioner No.1/judgment debtor No.1 but at the same time
issuing warrant of arrest to petitioner and respondent Nos.2 and
3/judgment debtor Nos.2 and 3. Learned counsel for
petitioner/judgment debtor No.1 states that when the matter
came up for hearing on 20-05-2010 it was represented on behalf
of respondent No.1 that proof affidavit is filed. Counsel for
petitioner submitted that a copy of proof affidavit is not given to
him. Counsel was under the impression that the case was
adjourned for cross examination and later he learned to his
dismay that warrant was ordered noting that there was no
representation for petitioner and respondent Nos.2 and 3.
Learned Sub Judge found means for petitioner and ordered to
issue warrant to the petitioner and judgment debtor Nos.2 and 3.
That order is under challenge. Learned counsel requested that
an opportunity may be given to adduce evidence in support of his
plea of no means. I have heard learned counsel for respondents
also. Counsel for petitioner in the executing court has filed an
W.P(C).No.24986 of 2010
: 2 :
affidavit that on 20-05-2010 he was present in court on behalf of
petitioner and had represented that he was not given a copy of
the proof affidavit. He sought adjournment and the case was
adjourned. He was under the impression that adjournment was
for cross examination of the deponent. But he found from the A
diary the entry that warrant was ordered to petitioner and
judgment debtor Nos.2 and 3.
2. Having regard to the facts and circumstances of the
case I am inclined to give petitioner an opportunity to adduce
evidence. The order under challenge to the extent it concerned
petitioner is set aside and I do so.
Resultantly this petition is allowed and Ext.P4, order to the
extent it concerned petitioner/judgment debtor No.1 is set aside
and the matter is remitted to the executing court for fresh
decision after giving petitioner an opportunity to cross examine
the deponent and adduce evidence in support of his plea of no
means. Respondent No.1 shall give a copy of the proof affidavit
to the petitioner. In case a copy of proof affidavit is not given it
is open to the petitioner to make a representation in that regard
to learned Sub Judge. Learned Sub Judge is directed to conduct
enquiry into the matter and decide the question at the earliest.
(THOMAS P JOSEPH, JUDGE)
Sbna/-