Swaminathan vs K.Premkumaran on 12 August, 2010

Kerala High Court
Swaminathan vs K.Premkumaran on 12 August, 2010
       

  

  

 
 
  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.
                           --------------------------------------
                  W.P.(C) Nos.24191, 24205 and 24206 of 2010
                           --------------------------------------
                    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

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