IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16464 of 2009(O)
1. THE FARMING TRUST OF INDA
... Petitioner
Vs
1. P.V.PHILIP
... Respondent
For Petitioner :SRI.JACOB SEBASTIAN
For Respondent :SRI.D.KRISHNA PRASAD
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :28/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.16464 OF 2009
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Dated this the 28th day of August 2009
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JUDGMENT
The writ petition is filed seeking the
following reliefs.
i) Set aside Ext.P3 order by issuing any
appropriate writ, order or direction.
ii) Issue such other writ, order or
direction, which are deemed fit and proper on the
facts and circumstances of the case and in the
interest of justice.
2. Petitioner is the judgment debtor in
E.P No.119/2008 in O.S No.500/2004 on the file of
the Munsiff Court, Palakkad. Suit was one for
W.P.(C).No.16464 OF 2009 Page numbers
money. The respondent / decree holder, during
trial had filed an application under Order 38 Rule
5 of the Code of Civil Procedure for interim
attachment of a motor vehicle belonging to the
petitioner / defendant in the suit. The defendant
entering appearance before the court and requested
the vehicle to be treated as the security with
undertaking that it will not be alienated. After
passing of the decree, when steps were taken for
arrest of the petitioner, he appeared before the
court. In the enquiry, it was revealed that the
vehicle had been alienated. The learned Munsiff
thereupon passed Ext.P3 order after issuing arrest
warrant against the petitioner / judgment debtor.
Propriety and correctness of Ext.P3 order is
challenged in the writ petition invoking the
supervisory jurisdiction vested with this court
under Article 227 of the Constitution of India.
W.P.(C).No.16464 OF 2009 Page numbers
3. I heard the counsel on both sides.
Having regard to the submissions made and taking
note of the facts and circumstances presented with
reference to Ext.P3 order, I find the procedure
followed by the court below directing issue of an
arrest warrant against the petitioner for violating
the alleged undertaking given by him without
affording him an opportunity for explanation cannot
be sustained under law. Some observations made in
Ext.P3 order that the conduct of the judgment
debtor was nothing short of contempt, that too
without hearing him cannot be approved. Whatever
be the contumacious conduct of the judgment debtor
in disposing of the vehicle violating the order of
undertaking given a court of law, the court cannot
reach in conclusion or enter a finding without
providing him an opportunity to explain and also an
opportunity of hearing. Further more, the court
below cannot also enter a finding that the
violation of the undertaking is a contempt.
W.P.(C).No.16464 OF 2009 Page numbers
Contempt proceedings are to be taken only after an
enquiry and the subordinate courts, after such
enquiry, has to address this court for taking
action under the Contempt of Courts Act if cause
thereor is made out. Whatever that be, at the time
of hearing the writ petition, the counsel on both
sides have reached a consensus by which the
petitioner agreed to pay the decree amount due in
two instalments. Petitioner has agreed to pay a
sum of Rs.25,000/- within a period of 45 days from
the date of the judgment and the balance amount
outstanding on the decree with expenses in
execution within a further period of 45 days.
Submission made by the counsel for the petitioner
as above is recorded. In the event of default in
payment of the decree debt as agreed to and
represented by the learned counsel for the
petitioner, it is open to the decree holder to
proceed for realisation of the entire decree debt
in the execution proceedings as provided by law.
W.P.(C).No.16464 OF 2009 Page numbers
Ext.P3 order is set aside reserving the right of
the decree holder to take appropriate steps under
Order 21 Rule 37 of the Code of Civil Procedure in
the event of default of petitioner to pay the
decree debt within the time limit as agreed and
fixed as above. In case the petitioner commits
default in paying the decree debt as agreed upon, I
make it clear that he will be liable to be
proceeded for violating the undertaking given, as
provided by law, apart from the proceedings for
realisation of the decree debt.
4. Subject to the observations made,
the writ petition is closed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv