IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No. 12922 of 2007(L) -------------------------- AGAINST THE ORDER DATED 27/03/07 IN EP.475/05 IN OS.1374/1991 of PRL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): --------------- C.RAVEENDRANADHAN NAIR, S/O. CHELLAPPAN PILLAI, AGED 69, AKAMPALLY VEEDU, PONNUMANGALAM, NEMOM VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.J.S.AJITHKUMAR RESPONDENT(S): --------------- R.K.NARAYANAN NAIR, KRISHNA BHAVAN, KURIATHIWARD, MANNARCADU VILLAGE, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX:- EXT.P1 TRUE COPY OF THE EXECUTION PETITION NO.475/05 IN OS.1374/91 FILED BY THE RESPONDENT DT. 15-12-05. EXT.P2 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN OS. 1374/91 DT. 5-7-06 EXT.P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN EP.475/02 DT. 21-11-06 EXT.P4 TRUE COPY OF THE ORDER IN EP.475/05 IN OS.1374/91 DT. 27-3-2007 OF THE PRINCIPAL SUB JUDGE THIRUVANANTHAPURAM. EXT.P5 TRUE COPY OF THE PETITION FOR REVIEW IN EP.475/05 IN OS. NO.1374/91 DT.17-3-07 EXT.P6 TRUE COPY OF THE AFFIDAVIT AND PETITION IN EP.NO.475/05 IN OS. NO.1374/91 DT. 17-3-07. //TRUE COPY// PS TO JUDGE. PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 12922 OF 2007 ----------------------------------------------- Dated this the 30th day of January, 2009 J U D G M E N T Under challenge in this writ petition is Ext. P4 order by which the execution court has ordered detention of the petitioner judgment debtor in civil prison as if in spite of sufficient means, he is willfully neglecting to pay the decree debt. This court became inclined to order immediate release of the petitioner noticing that the impugned order does not contain any specific finding to the effect that the petitioner judgment debtor is having sufficient means to pay the decree debt or a substantial portion thereof and that he has willfully neglected to pay the decree debt. Though the respondent decree holder was served with notice, he has not chosen to enter appearance before this court. 2. I have heard the submissions of Mr.V.C.James, learned counsel for the petitioner who would assail Ext.P4. He would argue that before the execution court orders arrest and detention of a judgment debtor it is mandatory that that court should enter a finding that in spite of having sufficient means to pay the decree debt or a substantial portion of the same the judgment debtor has willfully neglected to pay. It is true that such a finding is not seen entered in Ext.P4. But at the same time I find that the decree holder was able to WP(C)N0. 12922/07 -2- realise a sum of Rs.58,629/- towards the decree debt by initiating garnishee proceedings under Order 21 Rule 46A, B & C. Rs.58,629/- certainly a substantial portion of the total decree amount which comes to around Rs.2,50,000/-. Therefore it cannot be as if the petitioner is without any means. At the same time since specific finding has not been entered by the execution court I am of the view that Ext.P5 review petition submitted by the petitioner seeking review of the impugned order should be considered by the learned Subordinate Judge. I am however, inclined to direct such a consideration only on terms. The result is that Ext.P4 will stand set aside on condition that the petitioner pays a sum of Rs.10,000/- towards the decree debt without prejudice to his contention either directly to the decree holder or through his counsel appearing before the court below within one month from today. If the execution court notices receipt against payment of the above amount that court will post Ext.P5 for hearing, hear both sides, dispose of Ext.P5. It is made clear that if the above condition is not complied with by the petitioner on time, the impugned order will become final. (PIUS C.KURIAKOSE, JUDGE) ksv/