IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24191 of 2010(O)
1. SWAMINATHAN, S/O.SUBRAMANIAN,
... Petitioner
2. JAYAKRISHNAN, S/O SUBRAMANIAN,
Vs
1. K.PREMKUMARAN,
... Respondent
For Petitioner :SRI.I.DINESH MENON
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :12/08/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) Nos.24191, 24205 and 24206 of 2010
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Dated this the 12th day of August, 2010.
JUDGMENT
Notice to respondent is dispensed with in view of the order I am
proposing to pass in these Writ Petitions.
2. These Writ Petitions are in challenge of separate orders passed by
the learned Munsiff, Palakkad in E.P.Nos.227 of 2010, 224 of 2010 and 226 of
2010, respectively in O.S.Nos.555 of 2008, 526 of 2008 and 524 of 2008.
Learned Munsiff in the absence of petitioners and acting on the affidavit filed by
respondent/decree holder found that petitioners, inspite of having means
refused/neglected to pay the amount due under the decrees. Learned counsel
for petitioners contend that finding is not correct and that petitioners did not get
opportunity to contest the applications preferred by respondent for personal
execution. It is contended by learned counsel that assuming that petitioners did
not respond to the notice issued under Order XXI Rule 37 of the Code of Civil
Procedure (for short, “the Code”) warrant of arrest had to be issued under Sub-
rule (2) of Rule 37 and that enquiry regarding means could be conducted only
when petitioners appeared (pursuant to the notice) or when they were brought
(as per warrant of arrest) before court.
3. Since petitioners remained absent in the executing court and the
court has acted upon affidavit of the respondent to find in favour of means I do
W.P.(C) Nos.24191, 24205 & 24206/2010
2
not consider it necessary to go into the merit of the contentions advanced by the
petitioners in these proceedings. I leave that contention open. At this stage,
learned counsel for petitioners submitted that they may be given opportunity to
request the executing court to set aside the exparte order against them and to
seek review of the order issuing warrant of arrest. I make it clear that it is open
to the petitioners to move appropriate applications as provided under law before
the executing court. Having regard to the facts and circumstances of the case I
am inclined to think that order issuing warrant of arrest shall remain in abeyance
for some time so that in the meantime petitioners can pay the amount due
under the decree or move appropriate application before the executing court.
Resultantly this Writ Petition is disposed of in the following lines:
i. Petitioners are granted two months time from this day to pay
the amount due under the decree. The warrant of arrest issued against
petitioners shall stand in abeyance for the said period on condition that
petitioners deposited in the executing court for payment to respondent
Rs.8,000/- (Rupees eight thousand only) in each case within two weeks from
this day.
ii. It is made clear that it will be open to the petitioners to move
the executing court within the time specified under law to set aside the exparte
order against them and to seek review of the impugned order as provided
W.P.(C) Nos.24191, 24205 & 24206/2010
3
under law. If any such applications are preferred executing court shall
consider those applications and pass appropriate orders. While considering
those applications executing court shall not be under the impression that the
impugned orders have been confirmed by this judgment.
THOMAS P.JOSEPH,
Judge.
cks
