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