High Court Kerala High Court

P.Nadeer vs M/S.Muthoot Leasing And Finance … on 6 October, 2010

Kerala High Court
P.Nadeer vs M/S.Muthoot Leasing And Finance … on 6 October, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 24986 of 2010(O)


1. P.NADEER, AGED 56 YEARS, S/O.POOKUNJU,
                      ...  Petitioner

                        Vs



1. M/S.MUTHOOT LEASING AND FINANCE LTD.,
                       ...       Respondent

2. SREE RANJAN, CHIRAKKAL HOUSE,

3. K.A.ANTONY (DIED), KAZHANKATTUVILA

                For Petitioner  :SRI.K.ABDUL JAWAD

                For Respondent  :SRI.C.S.MANILAL

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :06/10/2010

 O R D E R
                  THOMAS P JOSEPH, J.

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                   W.P(C).No.24986 of 2010

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

              Dated this 06th day of October, 2010

                            JUDGMENT

This petition is in challenge of Ext.P4, order finding means

of petitioner No.1/judgment debtor No.1 but at the same time

issuing warrant of arrest to petitioner and respondent Nos.2 and

3/judgment debtor Nos.2 and 3. Learned counsel for

petitioner/judgment debtor No.1 states that when the matter

came up for hearing on 20-05-2010 it was represented on behalf

of respondent No.1 that proof affidavit is filed. Counsel for

petitioner submitted that a copy of proof affidavit is not given to

him. Counsel was under the impression that the case was

adjourned for cross examination and later he learned to his

dismay that warrant was ordered noting that there was no

representation for petitioner and respondent Nos.2 and 3.

Learned Sub Judge found means for petitioner and ordered to

issue warrant to the petitioner and judgment debtor Nos.2 and 3.

That order is under challenge. Learned counsel requested that

an opportunity may be given to adduce evidence in support of his

plea of no means. I have heard learned counsel for respondents

also. Counsel for petitioner in the executing court has filed an

W.P(C).No.24986 of 2010
: 2 :

affidavit that on 20-05-2010 he was present in court on behalf of

petitioner and had represented that he was not given a copy of

the proof affidavit. He sought adjournment and the case was

adjourned. He was under the impression that adjournment was

for cross examination of the deponent. But he found from the A

diary the entry that warrant was ordered to petitioner and

judgment debtor Nos.2 and 3.

2. Having regard to the facts and circumstances of the

case I am inclined to give petitioner an opportunity to adduce

evidence. The order under challenge to the extent it concerned

petitioner is set aside and I do so.

Resultantly this petition is allowed and Ext.P4, order to the

extent it concerned petitioner/judgment debtor No.1 is set aside

and the matter is remitted to the executing court for fresh

decision after giving petitioner an opportunity to cross examine

the deponent and adduce evidence in support of his plea of no

means. Respondent No.1 shall give a copy of the proof affidavit

to the petitioner. In case a copy of proof affidavit is not given it

is open to the petitioner to make a representation in that regard

to learned Sub Judge. Learned Sub Judge is directed to conduct

enquiry into the matter and decide the question at the earliest.

(THOMAS P JOSEPH, JUDGE)
Sbna/-