IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 2394 of 2008(I)
1. M.K.CHELLAPPAN, AGED 74 YEARS,
... Petitioner
Vs
1. JOSEPH SCARIAH, MADAKKATTAYA,
... Respondent
2. A.K.BAPPUJI SREERENGATH VEEDU,
For Petitioner :SRI.P.K.JOSE
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :25/01/2008
O R D E R
M.N.KRISHNAN, J.
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W.P.(C). NO. 2394 OF 2008
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Dated this the 25th day of January, 2008
JUDGMENT
This writ petition is filed for a direction to the Munsiff, Court,
Changanacherry, not to enforce the warrant issued against the
petitioner and to consider the execution application filed by him u/s
59 of the CPC.
2. Learned counsel submits that the writ petitioner is a
retired pensioner who is aged 74 and is suffering from non healing
wound in the leg and is unable to raise the fund. He further submits
that whatever pension he receives is spend for his treatment and day
to day expenses and the petitioner is trying his level best to pay off
the decree debt.
3. The Apex Court in the decision reported in Jolly George
Varghese v. Bank of Cochin [1980 (2) SCC 360] held that if a
person is suffering from any serious ailment and has to spend money
for the treatment which makes him unable to wipe off the decree
debt, it is a factor that has to be considered for the reason that it is
not intentional or evadement of the payment so as to curtail the civil
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liberty of that person. However an application is also filed by the
petitioner u/s 59 of the CPC on the ground of illness. First of all, if
there is reasonable explanation of the factum that whether Rs.3,000/-
derived as pension is sufficient to make the entire payment in a lump,
are all questions to be considered by the court below.
Therefore, I set aside the order passed by the court below
and remit back the matter to the same court with a direction to
consider the question afresh after affording equal opportunities to the
writ petitioner as well as the respondents to prove their rival
contentions.
The writ petitioner is directed to appear before the lower
court on 25.2.08. On his appearance, the court below shall give
notice to the counsel for the respondents herein and fix a date for
hearing. I make it clear that till the disposal of the matter afresh, the
arrest warrant shall not be executed.
M.N.KRISHNAN, JUDGE
vps
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