IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 OP(C).No. 139 of 2010(O) ------------------------ EP.NO.312/2006 IN OS.262/2001 of SUB COURT, KOLLAM. .................... PETITIONER: ---------------------- S.SURESH, S/O.SARASEEDHARAN, SURESH BHAVAN, MURUNTHAL CHERY, THRIKKADAVU, KOLLAM DISTRICT. BY ADVS. SRI.S.SANAL KUMAR, SMT.BHAVANA VELAYUDHAN. RESPONDENT(S): --------------------------- K.RADHAKRISHNAN, S/O.LATE KUNHIKRISHNAN, SARASWATHI BHAVAN, MURUTHAL CHERY, THRIKKADAVU, KOLLAM DISTRICT. BY ADVS. SMT.K.G.BINDU, SMT.T.S.MAYA (THIYADIL). THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.139/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE DECREE IN O.S.NO.262/2001. P2: COPY OF THE EXECUTION PETITION NO.143/2003. P3: COPY OF THE EXECUTION PETITION NO.312/2006, P4: COPY OF THE OBJECTION IN EP.312/2006 IN O.S.262/2001. P5: COPY OF THE AFFIDAVIT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.139 of 2010 ==================================== Dated this the 19th day of August, 2011 J U D G M E N T Order issuing warrant of arrest to the petitioner in E.P. No.312 of 2006 in O.S. No.262 of 2001 of the court of learned Sub Judge, Kollam is under challenge. A decree was passed in favour of respondent for recovery of Rs.1,06,514/- with interest at the rate of 6% per annum and costs. Respondent filed E.P. No.143 of 2003. In that execution petition, respondent sought personal execution and warrant of arrest was ordered to the petitioner. Since steps were not taken that execution petition was dismissed on 31.08.2005. That was followed by respondent filing E.P. No.312 of 2006. Thereafter Order XXI Rule 37 notice was issued to the petitioner. He appeared and as learned counsel for respondent submits which is not disputed, a number of adjournments were obtained by petitioner, sometime on payment of costs also. In the meantime respondent had filed a proof affidavit. But on no occasion petitioner cross-examined the respondent. After several adjournments beginning from 04.06.2007 till 08.06.2010 there was an order issuing warrant of arrest to the petitioner. He was arrested and produced on 24.09.2010. At that stage, O.P(C) No.139 of 2010 -: 2 :- challenging the execution petition, petitioner filed this Original Petition. This Court granted interim order on September 30, 2010. Since it was asserted that executing court has not conducted any enquiry regarding means and entered finding on the same, it was directed that petitioner be released from the civil prison on his filing an affidavit in the executing court undertaking to appear before the executing court as and when required. It is the argument of learned counsel for respondent that even thereafter petitioner did not appear in the executing court. Learned counsel for petitioner argued that on filing E.P. No.312 of 2006 notice under Rule 22 of Order XXI of the Code ought to have been issued. But that argument cannot stand in the light of the proviso to Rule 22 of Order XXI since E.P. No.312 of 2006 was filed within two years of dismissal of E.P.No.143 of 2003 on 31.8.2005. 2. So far as contention that there is no finding regarding means is concerned there is the uncontroverted proof affidavit of the respondent regarding means of petitioner. It is on the materials on record that warrant of arrest was issued to the petitioner. It is only after petitioner was arrested that the said order was also challenged. It is seen that petitioner has obtained O.P(C) No.139 of 2010 -: 3 :- several adjournments spread over a few years to cross-examine the respondent on his proof affidavit. But that was not done. In the circumstances I do not find reason to interfere with the impugned order. 3. It is pointed out by learned counsel for respondent that as per E.P. No.312 of 2006 more than Rs.1,45,725/- with interest was due to the respondent and no amount was paid. According to the petitioner he is unable to pay the amount. 4. Having regard to the circumstances stated and after hearing learned counsel for respondent I am inclined to give opportunity to the petitioner to pay the amount in installments. Resultantly, Original Petition is disposed of in the following lines: (a) Petitioner is permitted to pay/deposit the amount in the executing court for payment to respondent due under the decree in ten (10) equal monthly installments beginning from 01.10.2011 provided that by the last installment the entire amount due is paid. O.P(C) No.139 of 2010 -: 4 :- (b) Payment/deposit shall be made on or before 5th of every month and in case that day happens to be a holiday such payment/deposit shall be made on the next working day. (c) In case of default in making payment/deposit of any two installments it will be open to the executing court to proceed with the execution against petitioner without any further enquiry regarding means. (d) It is directed that warrant of arrest issued to the petitioner will stand in abeyance for the said period of ten (10) months from 01.10.2011 or till default in payment as aforesaid is committed, whichever is earlier. THOMAS P. JOSEPH, JUDGE. vsv