IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 31076 of 2006(Y)
1. M.K.MOHAMMED RASHEED,
... Petitioner
Vs
1. M/S.KACHIN CREATIONS,
... Respondent
For Petitioner :SRI.P.S.SREEDHARAN PILLAI
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :24/07/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) NO. 31076 of 2006
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Dated this the 24th day of July , 2007
JUDGMENT
The grievance of the petitioner, who is the judgment
debtor against whom order of arrest was passed by the Execution
Court on the ground that he did not appear in response to notice
under Rule 37, is that two applications filed by him for recalling
the warrant and for recalling the Amin who was deputed for
arresting him were dismissed. Ext.P3 is the order by which the
application to recall the warrant was dismissed. Ext.P3 it must
be observed is a non speaking order. On the basis of Ext.P3
only, the application filed by the petitioner for recalling the Amin
was dismissed under Ext.P4. Even though the respondent was
served with notice in this writ petition, they have not entered
appearance before this court to resist the prayers in the writ
petition.
2. Obviously, the order of arrest passed against the
petitioner was not preceded by any enquiry by the court under
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Rule 40 of Order 21 CPC as to whether the petitioner is
possessed of sufficient means to pay the decree debt or any
substantial portion there of, and yet neglected to make
payment. Annexure I is a copy of the statement of objection filed
by the petitioner along with the application to recall the warrant.
Annexure I will show that contention though belatedly has been
raised by the petitioner to the effect that he is not liable to be
arrested and detained in civil prison. This court became inclined
to grant stay only on condition that the petitioner deposits
Rs.20,000/- towards the decree debt before the Execution Court
within one month from 29.11.2006. The learned counsel for the
petitioner submits that the above condition has been complied
with. If that be so, I am of the view that there is justification for
directing reconsideration on the basis of an enquiry to be held
into the Annexure- I objections.
2. Under the above circumstances, this writ petition will
stand disposed of issuing the following directions:
The Execution Court will verify whether the petitioner has
deposited on or before 29.11.2006 a sum of Rs. 20,000/- as
ordered by this court on 29.11.2006 towards the decree debt. If
WPC No31076/2006 3
it is seen on verification that the deposit has been made, the
Execution Court will post the Execution Petition for enquiry into
Annexure I objections subject to the further condition that till
such time as enquiry is completed, the petitioner shall continue
to pay every month towards the decree debt at the rate of
Rs.5,000/-(Rs. Five Thousand only) commencing from 1st
September 2007. In the enquiry both sides should be permitted
to adduce evidence. The enquiry shall be completed by the
learned Subordinate Judge at his earliest and at any rate within
six months of the petitioner producing a copy of this judgment.
PIUS C. KURIAKOSE,
JUDGE.
dpk