IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 WP(C).No.2970 of 2009 (C) --------------------------------- OS.83/2005 of MUNI-MAGI.COURT,PATTAMBI .................... PETITIONER: --------------- KUNHAN S/O. CHATHA, AGED 42 YEARS, MANACKILAMMARIL HOUSE, NJAGATTIRI PATTAMBI, OTTAPALAM TALUK. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENTS: ------------------ 1. KUTTISANKARA PERUPRA NAYAR, S/O. MEENAKSHI NESSAR, PATTUTHODI HOUSE, THRITHALA AMSOM, NJAGATTIRI POST, OTTAPALAM TALUK. 2. NARAYANAN S/O. ACHUTHAN, KADATHODIYIL HOUSE, THRITHALA AMSOM, NJAGATTIRI POST, OTTAPALAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.2970 of 2009 ------------------------------------------------ Dated this the 29th day of January, 2009 JUDGMENT The petitioner is one against whom notice was issued by the execution court for production of an autorickshaw attached before judgment in the suit and which was released to him on “moonnamsthanam”. It is submitted that though he entered appearance in the court, the court issued Ext.P5 warrant to the Amin to produce autorickshaw bearing registration No.KL-9A-1915 attached before judgment and released by him to the petitioner or in the alternative to arrest and produce him before court. The endorsement on Ext.P5 shows that the petitioner resisted execution of the warrant and the warrant was therefore, returned by the Amin. It is submitted that according to the petitioner even before warrant was issued to the Amin, on receipt of W. P. C. No.2970 of 2009 -2- notice he entered appearance before court on 19/11/08 and sought for time to file counter that on 02/12/08, he filed counter to E.A.210/08 in E.P.18/08 in O.S.83/05 copy of which is Ext.P4; that thereafter on the posting date on 15/12/08 he could not appear before court as he was on pilgrimage to Sabarimala and despite his counsel asking for a week's time the court posted the case to 17/12/08 for his appearance and as he could not appear on that day warrant was being issued to the Amin who returned the warrant as per endorsement on Ext.P5. 2. The suit O.S.83/05 is one instituted by the first respondent against the second respondent for recovery of money. Autorickshaw bearing Registration No.KL-9A-1915 admittedly owned by the second respondent was being ordered to be attached before judgment. It is the case of the petitioner that when the Amin W. P. C. No.2970 of 2009 -3- came over to attach the autorickshaw he was sitting in the said autorickshaw though he had absolutely no connection with the said autorickshaw and he happened to be there as he was driver of another autorickshaw parked there and the Amin obtained his signatures on blank papers giving him to understand that it is for the purpose of evidence to the effect that he came over and identified the said autorickshaw and that he has not taken the autorickshaw on “moonnamsthanam” as alleged and that he is not liable either to produce the autorickshaw or to pay any amount decreed by the court below against the second respondent. 3. At the outset, I have to observe that the Amin does not appear to have been given any authority to attach and release the vehicle on “moonnamsthanam” as per Ext.P5, but he has on his own accord released the vehicle W. P. C. No.2970 of 2009 -4- and according to the petitioner, the vehicle was not being released to him, but it is only that his signatures were being obtained on blank papers giving him to understand that it is for evidence for the purpose of showing that the Amin had come over and identified the autorickshaw. Thus, it is practically a case where the person who is stated to have received the autorickshaw on “moonnamsthanam” disowns to have received the said autorickshaw. The reasons stated by the petitioner does not appear to be convincing to me as he does not offer any explanation as to the endorsement at running page 13 which shows that as per Ext.P1 kychit he was taking over the autorickshaw on “moonnamsthanam” as the son of the second respondent and as the person who is driving the said autorickshaw ordered to be attached. Ext.P1 is produced by the petitioner himself. There is no mention W. P. C. No.2970 of 2009 -5- anywhere in the Writ Petition as to who the father of the petitioner is, if it be not the second respondent/Narayanan. An explanation in that behalf ought to have been furnished by the petitioner in view of what is recorded in Ext.P1 as aforesaid. The plaintiff/first respondent is also an attestor to Ext.P1 and there is yet another attestor who is one C.P.Musthafa as evidenced from Ext.P1. In the normal course the Amin could not have released the vehicle to a stranger if that stranger to the suit is not the son of the defendant himself and the person who was driving the autorickshaw ordered to be attached especially when the plaintiff is seen to have accompanied him and he is an attestor also to Ext.P1. It is for the first time before me that during arguments counsel for the petitioner submits that the father of the petitioner is not the second respondent/Narayanan. The genuineness W. P. C. No.2970 of 2009 -6- or otherwise of the contentions advanced by the petitioner in Ext.P4 counter is a matter to be enquired into by the court below. However, that does not preclude the court below from proceeding with execution personally and against the assets of the second respondent/judgment debtor and the decree holder shall take steps accordingly as against the second respondent/judgment debtor. In the meanwhile, the execution court may conduct an enquiry into the contentions raised by the petitioner/Kunhan who has disclosed his mother's name as Chatha without disclosing his father's name. The grievance of the petitioner attempted to be redressed by filing this Writ Petition is that he may not be arrested with the assistance of police for which orders are stated to have been passed by the court below. Ext.P5 shows that the Amin was returning the warrant. There is nothing before this Court to W. P. C. No.2970 of 2009 -7- show that the court below has issued warrant for execution with the assistance of police though counsel for the petitioner submits that there is such an order passed by the court below and that copy thereof could not be obtained though applied for. In the circumstances, the petitioner may move the execution court for appropriate reliefs till his objections are enquired into and orders are passed. He shall also be at liberty to approach this Court producing order if any passed by the court below to issue warrant with the assistance of police. Apart from making the above observations in the matter of consideration of the objections filed by the petitioner, I am unable to grant any relief as desired by the counsel for the petitioner in the circumstances of the case when the petitioner does not even disclose his father's name which may throw some light in the matter W. P. C. No.2970 of 2009 -8- of ascertaining the truth or otherwise of the contentions. 4. This Writ Petition is hence, disposed of with the above directions. K.P.BALACHANDRAN, JUDGE kns/-