IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 WP(C).No. 27123 of 2009(O) -------------------------- OS.1331/2002 of II ADDL.MUNSIFF COURT, TRIVANDRUM .................... PETITIONER: --------------- B.SUKESH,S/O.P.BALAKRISHNAN NAIR, T.C.4/1950,P.C.W.A., A-57,PANDIT COLONY, KOWDIAR P.O., THIRUVANANTHAPURAM. BY ADV. MR.SASTHAMANGALAM S. AJITHKUMAR MR.P.M.SANEER RESPONDENT(S): --------------- INDIAN BANK,H/O.RAJAJI SALAI, CHENNA, PATTOM BRANCH, TRIVANDRUM, REPRESENTED BY ITS SENIOR MANAGER. ADV. MR.T.K.AJITH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27123 of 2009(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: DECREE IN O.S.NO.1331/2002 DATED 7.4.2004 OF THE II ADDITIONAL MUNSIFF, THIRUVANANTHAPURAM. EXT.P2: JUDGMENT IN O.S.NO.1331/2002. EXT.P3: PETITION TO SET ASIDE EX-PARTE ORDER. EXT.P4: OBJECTION FILED AGAINST THE EXECUTION PETITION. EXT.P5: ORDER DATED 1.6.2009 IN E.P.NO.80/08 IN O.S.NO.1331/2002. RESPONDENT'S EXHIBITS: NIL ..... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.27123 Of 2009 ---------------------- Dated this the 24th day of September, 2010. J U D G M E N T The first defendant in O.S.No.1331 of 2002 on the file of the II Additional Munsiff Court, Thiruvananthapuram is the petitioner. The respondent bank is the decree holder. The Munsiff Court passed a decree for recovery of Rs.51,051/-. Ext.P1 is the decree and Ext.P2 is the judgment. The defendants in the suit remained ex-parte. 2. The decree holder filed execution petition as E.P.No.80 of 2008. Though notice was issued to the judgment debtors, the petitioner and the another remained ex-parte. The execution court passed Ext.P5 oder. The decree holder filed affidavit. The court found that means of judgment debtors 1 & 2 is and therefore ordered to issue arrest warrant against the judgment debtors 1 & 2. Petitioner who is the first judgment debtor challenged Ext.P5 order. 3. Petitioner failed to appear on 3.3.2009. In the meanwhile Ext.P3 petition was filed to set aside the ex-parte W.P.(C).No.27123 Of 2009 ::2:: order. He also filed an objection to the execution petition. Ext.P4 is the objection. Exts.P3 petition and P4 objections were submitted by the petitioner on 1.4.2009. The grievance of the petitioner is that the execution court without considering Exts.P3 & P4 passed Ext.P5 order on 1.6.2009. By Ext.P5 order the court issued warrant under Order XXI Rule 37 against the petitioner. It is submitted by the counsel for the petitioner that the court below is bound to consider Exts.P3 & P4 and pass appropriate orders on the same and the failure to do so and passing of Ext.P5 order caused manifest injustice and therefore approached this Court for passing appropriate direction. 4. Ext.P5 order was passed ordering issuance of arrest warrant without considering Exts.P3 and P4 which were pending consideration at the time of passing of Ext.P5 order. The non- consideration of Exts.P3 & P4 has caused serious prejudice to the petitioner. Finding that he has got a genuine grievance, this Court is of the view that the petitioner is entitled to reliefs. Accordingly, Ext.P5 order is set aside on condition that the petitioner deposits a sum of Rs.5,000/- before the court below W.P.(C).No.27123 Of 2009 ::3:: within a period of one month from today. If the amount is deposited as directed by this Court the court shall consider and dispose of Exts.P3 & P4 and pass appropriate orders within a period of four months from the date of deposit of the petitioner. Writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-