IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22328 of 2009(O)
1. K.NATARAJAN, MANILAL MANDIRAM,
... Petitioner
Vs
1. SREEKANTAN NAIR, S/O.SREEDHARAN PILLAI,
... Respondent
For Petitioner :SRI.S.SOMAN
For Respondent :SRI.M.R.RAJESH
The Hon'ble MR. Justice K.T.SANKARAN
Dated :10/02/2011
O R D E R
K.T.SANKARAN, J.
------------------------------------------------------
W.P.(C). NO. 22328 OF 2009 O
------------------------------------------------------
Dated this the 10th day of February, 2011
JUDGMENT
The petitioner is the judgment debtor in O.S.No.138 of 2002
on the file of the Munsiff’s Court, Attingal. The decree is for payment
of money. Execution Petition was filed for realization of the decree
amount by arrest and detention of the judgment debtor in civil prison.
It would appear that an order for arrest was passed by the court
below. That order was challenged in W.P.(C) No.31572 of 2007.
This Court, as per the order dated 24.10.2007, set aside the order
passed by the executing court and directed the executing court to
afford an opportunity to the decree holder to adduce positive
evidence to prove the means of the judgment debtor. For that
purpose, the matter was remitted back to the executing court.
Thereafter, the executing court passed the following order on
28.5.2009:
“No evidence adduced for the judgment debtor.
Evidence adduced by the decree holder clearly shows
that the judgment debtor has sufficient means to pay the
decree debt. Issue arrest warrant against the JD. Call
on 25/06/2009.”
W.P.(C) NO.22328 OF 2009 O
:: 2 ::
Ext.P2 order dated 25.6.2009 was passed issuing arrest warrant.
2. In spite of the detailed order passed by this Court in W.P.
(C) No.31572 of 2007, the court below has not passed a speaking
order in the Execution Petition before deciding to issue arrest
warrant to the judgment debtor. I am sure that the judgment in W.P.
(C) No.31572 of 2007 was not even considered by the court below.
The decisions rendered by this Court and the Supreme Court would
clearly show that the contentions put forward by the parties should
be considered before issuing arrest warrant for the arrest and
detention of the judgment debtor. The court below passed a cryptic
order and on that basis issued arrest warrant.
3. The order dated 28.5.2009 as well as Ext.P2 order dated
25.6.2009 are therefore, set aside. The executing court shall pass
fresh orders after affording an opportunity of being heard to both
parties.
4. It is stated that pursuant to the interim order, a sum of `
W.P.(C) NO.22328 OF 2009 O
:: 3 ::
20,000/- was deposited by the judgment debtor. The decree holder
would be entitled to withdraw the same.
The Writ Petition is disposed of as above.
(K.T.SANKARAN)
Judge
ahz/