IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 WP(C).No. 14050 of 2009(O) --------------------------------------- OS.174/2009 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... PETITIONER(S): ---------------------- MURUKESAN, S/O.THANKAPPAN ACHARI, JAYAGOPAL MANDIRAM, MUKKOLAKKAL, VARIPURU VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM. BY ADV. MR.D.KISHORE RESPONDENT(S): -------------------------- C.NATARAJAN, S/O.CHELLAPANACHARI, SITAVILASOM, BANK JUNCTION, ANADU MURI, ANADU VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADVS. MR.R.S.KALKURA FOR R MR.M.S.KALESH FOR R MR.HARISH GOPINATH FOR R MR.V.VINAY MENON FOR R MR.M.AJAY (IRUMPANAM) FOR R THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.14050 of 2009 - O --------------------------------- Dated this the 8th day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following relief: “To call for the records leading to the passing of Exts.P5,P7, and P8 orders and quash the same.” 2. Petitioner is the defendant in O.S.No.174/2009 on the file of the Munsiff Court, Nedumangad. Suit was one for money in which the respondent/plaintiff moved an application under Order XXXVIII Rule 1 CPC for arrest of the defendant alleging that he intends to leave the jurisdiction of the court and thus evade from the decree that is likely to be passed in the suit against him. On that application notice was served on the defendant by affixture, but, defendant did not appear on the hearing date. Court passed Ext.P5 order directing the defendant to furnish security, and also a warrant for his arrest. The defendant appeared and filed Ext.P6 affidavit and produced bonds executed by two sureties, unconditionally undertaking to appear before the court as and when ordered. The court thereupon W.P.(C).No.14050 of 2009 - O 2 passed Ext.P7, ordering for keeping the warrant issued in abeyance with a condition that the defendant should furnish cash security by bank guarantee or produce fixed deposit receipt within a period of three days. On the next hearing date, presumably, as the defendant did not comply with the order under Ext.P7, the court passed Ext.P8 order directing the repeating of warrant for the arrest of the defendant. It appears, the defendant did not appear on the date when Ext.P8 was passed by the court. Propriety and correctness of the orders passed by the court on the application moved by the plaintiff under Order XXXVIII Rule 1 CPC, namely, Exts.P5, P7 and P8 are challenged in this writ petition by the defendant invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Having regard to the submissions made and also taking note of the facts and circumstances involved, I find that the petitioner/defendant has an alternative efficacious remedy to challenge Ext.P8 order as provided under Order XLIII Sub Rule 1 W.P.(C).No.14050 of 2009 - O 3 (q) CPC. I do not want to go into the merits of the case or with respect to the legality, propriety and correctness of the orders passed by the learned Sub Judge, but, I cannot refrain from making a comment that the learned Sub Judge has failed to take note of the fact that Order XXXVIII Rule 1 contemplates an order for appearance of the party in a suit and also in the execution if at all a decree is passed in the suit after trial. Demanding cash security from the defendant, who is proceeded under an application under Order XXXVIII Rule 1 CPC for the suit claim is apparently and patently erroneous, and unsustainable in law. It is also noticed that on the application moved under Order XXXVIII Rule 1 CPC the court has issued notice under Order XXXVIII Rule 5 CPC even without specifying the sum in that notice which the defendant has to tender to the Amin, if the arrest under the warrant, is to be avoided. No further dilation in the matter is required as the entire issue involved has to be considered by the appropriate court. If any appeal is preferred against Ext.P8 order by the defendant, all previous orders passed under Order XXXVII Rule 1 CPC would also be covered by that W.P.(C).No.14050 of 2009 - O 4 appeal and, further, the time taken by him for prosecuting this writ petition shall also be taken due note of in entertaining such appeal granting condonation for such period as provided under Section 14 of the limitation Act. Execution of warrant issued against the defendant by the court below shall be kept in abeyance for a period of one month to enable the defendant to prefer an appeal against that order before the appropriate court. If any such appeal is filed, the court concerned shall dispose such appeal, as expeditiously as possible, at any rate within a period of two months from the presentation of the appeal and to do so, notice on the respondent/plaintiff shall be allowed to be served by the appellant/defendant by service of notice on the counsel who appear for the plaintiff in the court below. The writ petition is disposed of as indicated above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-