IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 OP(C).No. 1812 of 2011(O) AGAINST THE ORDER IN EA 85/2011 IN E.P.NO.71/2010 IN AR.257/2008 OF ADDITIONAL DISTRICT COURT, ALAPPUZHA. PETITIONER -------------------- NALINI AMMA,AGED 92 YEARS, CHIRATHARA HOUSE,KARIKKAD, THANNEERMUKKOM,ALAPPUZHA. BY ADV. SRI.K.KARTHIKEYA PANICKER SMT.DAYA K. PANICKER RESPONDENT: --------------- MUTHOOT VEHICLE AND ASSET FINANCE LTD., MUTHOOT CHAMBER,KURIAN TOWERS,BANERJI ROAD, ERNAKULAM 682 018. BY ADV. SRI.C.S.MANILAL SRI.S.NIDHEESH THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT WHEN THE CASE WAS CALLED, THERE IS NO REPRESENTATION FOR THE PETITIONER. ACCORDINGLY, THE ORIGINAL PETITION IS DISMISSED FOR DEFAULT. 22/6/2011 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1812 of 2011 --------------------------------------- Dated this 25th day of July, 2011 JUDGMENT Petitioner is the judgment debtor in E.P.No.71 of 2010 in Arb.Ref.No.256 of 2008 of the Court of learned Additional District Judge, Alappuzha. The Arbitrator passed an award against petitioner and others, petitioner, said to be a surety for the principal debtor for payment of the amount. That award is being executed in the Court of learned Additional District Judge, Alappuzha. On the application of respondent (E.A.No.85 of 2011) property of petitioner was attached. At that time, petitioner has approached this Court raising various contentions including that petitioner was not a surety in the transaction and at any rate, no examination under Rule 41 of Order XXI of the Code of Civil Procedure (for short, "the Code”) was conducted. Learned counsel submitted that petitioner is aged about 92 years and that it is without ascertaining whether award amount could be realised from the principal debtor that respondent is proceeding against petitioner. In the circumstance, interference is requested. 2. Learned counsel for respondent has submitted that property of petitioner was attached and hence a further oral O.P(C).No.1812 of 2011 -: 2 :- examination under Order XXI, Rule 41 of the Code is not required. 3. So far as the contentions which refers to matters prior to the passing of award is concerned, that is not a matter to be raised in the executing court. Such contentions, if any available to the petitioner has to be raised elsewhere as provided under law. 4. So far as the execution levied against the petitioner is concerned, my attention is drawn to Rule 41 of Order XXI of the Code which required the Court to conduct an oral examination of the judgment debtor about his debts and what other property or means he has to satisfy the decree. It is not disputed that the amount payable to the respondent as per the award has not been satisfied either by the principal debtor or other persons liable under the award including petitioner. It is not disputed that petitioner has landed property and that property is attached under E.A.No.85 of 2011. In the circumstance, contention that attachment is bad because oral examination is not conducted under Order XXI, Rule 41 of the Code cannot be sustained. I do not find reason to interfere in the matter on the contentions raised. O.P(C).No.1812 of 2011 -: 3 :- 5. Learned counsel has made an alternative plea that petitioner may be permitted to pay the amount in installment. Petitioner can urge that request in the executing court and if any such request is made, the executing court shall pass appropriate order after hearing the respondent as well. With the above direction this original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-