IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 15826 of 2006(H)
1. SIVARAMAN NAIR, AGED 61 YEARS,
... Petitioner
Vs
1. JOHN V.JOHN,
... Respondent
2. MEENAKSHIAMMA,
3. M.D. SATHEESH KUMAR @ UNNI OF
For Petitioner :SRI.R.T.PRADEEP
For Respondent :SRI.A.SHAFEEK
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :17/07/2007
O R D E R
PIUS C. KURIAKOSE,J.
- - - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C) No.15826 of 2006
- - - - - - - - - - - - - - - - - - - - - - - - -
Dated: 17th July, 2007
JUDGMENT
In this Writ Petition under Article 227 of the Constitution the
petitioner who is the first judgment-debtor in E.P.96 of 2005 in
O.S.No.50 of 1999 on the files of the Munsiff’s Court, Mavelikkara
impugns Ext.P3 order of the learned Munsiff by which the court has
issued warrant for the arrest of the petitioner. Arrest was sought for
by the 1st respondent-decree-holder on the ground that the petitioner
has sufficient means to pay off the decree debt and that he is wilfully
neglecting to make the payment. The petitioner would resist the
prayer contending inter alia that he does not have any income and
that he is unemployed. According to him, he is an acute diabetic
patient and he has cardiac complaints also. The matter was enquired
into by the execution court under Rule 40 Order XXI.
2. On the side of the 1st respondent-decree-holder, he himself
was examined as P.W.1. On the side of the petitioner, two documents
Ext.B1 certificate issued by the hospital treating the petitioner and
Ext.B2 ration card were marked in evidence. Counter oral evidence
consisted of the testimony of the petitioner himself. The court below
after meticulously analysing the evidence on record found that the
W.P.C.No.15826/06 – 2 –
petitioner’s contention that he never had sufficient means to pay the
decree debt after the decree was passed against him is wrong. It was
noticed that the petitioner could repay another loan of Rs.40,000/-
which he had taken in the meanwhile.
3. Mr.R.T.Pradeep, learned counsel for the petitioner and
Mr.A.Shafeek, learned counsel for the 1st respondent addressed me
at length. Apart from addressing me on the various grounds raised in
the Writ Petition, Mr.R.T.Pradeep placed strong reliance on the
judgment of Janaki Amma,J. in Joseph K.Mathai v. Luckose
Kurian (I.L.R. 1979 (1) Kerala 205) and argued that a further
opportunity is to be given to the judgment-debtor before he is
detained in civil prison to show-cause against such detention.
4. The attractiveness of the submissions of Mr.R.T.Pradeep
notwithstanding, they are too technical for receiving acceptance at
the hands of this court sitting in supervisory jurisdiction under Article
227 of the Constitution. The judgment of Janaki Amma,J. in Joseph
K.Mathai v. Luckose Kurian (supra) in my opinion does not support
the argument that in a case where an enquiry under Rule 40 Order
XXI has been conducted into the means of the judgment-debtor
concerned and also into the question whether he was wilfully
W.P.C.No.15826/06 – 3 –
negligent in the matter of paying decree debt, a further opportunity
should be given to the judgment-debtor to show cause against actual
arrest even after finding has been entered into regarding the
sufficiency of means and wilful nature of the negligence.
The challenge against the impugned order fails and the Writ
Petition will stand dismissed.
srd PIUS C.KURIAKOSE, JUDGE