High Court Kerala High Court

Abdulkhader Kunju vs Jameela on 30 May, 2007

Kerala High Court
Abdulkhader Kunju vs Jameela on 30 May, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 24052 of 2004(L)


1. ABDULKHADER KUNJU, S/O. SHAHEED KUNJU,
                      ...  Petitioner

                        Vs



1. JAMEELA, VALAYAM PARAMBIL VEEDU,
                       ...       Respondent

                For Petitioner  :SRI.S.V.BALAKRISHNA IYER

                For Respondent  :SRI.S.SHANAVAS KHAN

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :30/05/2007

 O R D E R
                               PIUS C. KURIAKOSE, J.

                                -------------------------------

                             W.P.(C) No. 24052 OF 2004

                              -----------------------------------

                        Dated this the 30th day of May, 2007


                                       JUDGMENT

Ext.P4 order passed by the Subordinate Judge, Mavelikkara

directing issuance of arrest warrant against the petitioner who was the

counter petitioner in an application for arrest before judgment submitted

by the respondent is under challenge. The parties are husband and

wife. The suit, it appears, was for recovery of money and also for return

of ornaments. Ext.P1 is the application for arrest before judgment under

Order XXXVIII Rule I. It is alleged therein that with the objective of

protracting or delaying the decree which may be passed against the

petitioner, the petitioner had made all arrangements for leaving the

country. It appears that on entertaining Ext.P1 the learned Sub Judge

passed an order directing respondent to furnish security for the

prospective decree debt and issued show cause notice. Ext.P2 is copy

of the said show cause notice. The petitioner on receiving Ext.P2 filed

Ext.P3 objections clearly contending that he has not even dreamt in

terms of leaving the country. It is claimed that he is gainfully employed

here only and that the apprehension that he will leave the country is

without any basis at all. No enquiry has obviously been conducted into

Ext.P2 objections. But on 05.04.04 the court after noticing that security

WPC No.24052/2004

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has not been furnished, in spite of Ext.P2, has passed the impugned

order.

2. The security which is contemplated in a proceeding under

Order XXXVIII Rule I is not a security for the prospective decree debt.

Instead, it is a security for regular appearance of the defendant

concerned in court. The petitioner has certainly denied the allegation

that he has made arrangements to leave the country. The learned

counsel for the petitioner is not in a position to inform me whether the

petitioner holds a passport.

3. Having regard to the provisions of Order 38 Rule I and the

nature of security contemplated by that Rule, I am of the view that

Ext.P4 order can be set aside provided the petitioner complies with the

following conditions:

1. If the petitioner holds a passport as on today he will surrender

the pass port before the court below.

2. The petitioner will also furnish a personal security bond

together with one surety through which the petitioner and the surety will

assure the court that the petitioner will appear before the court on every

posting dates, unless otherwise exempted by the court.

The Writ Petition is disposed of as above. No costs.

PIUS C. KURIAKOSE, JUDGE

btt

WPC No.24052/2004

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