IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 WP(C).No. 6598 of 2010(O) ------------------------- AGAINST THE ORDER IN EP 3/2008 IN OS.101/2005 of MUNSIFF COURT,KATTAPPANA .................... PETITIONER: --------------- SAJAN MATHEW,S/O.LATE MATHEW, AGED 29,. RESIDING AT KALLANKUNNEL HOUSE, UPPUKANDOM P.O.,KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK. BY ADV. SRI.JOICE GEORGE RESPONDENTS: --------------- 1. THE FEDERAL BANK LIMITED, ALWAYE. REPRESENTED BY ITS BRANCH MANAGER, ERATTAYAR. 2. MARIYAMMA MATHEW, W/O.LATE MATHEW, AGED 52 YEARS,.RESIDING AT KALLANKUNNEL HOUSE, UPPUKANDOM P.O.,KALKOONTHAL VILLAGE,] UDUMBANCHOLA TALUK. ADV. SRI.V.J.JOSEPH FOR R1 SMT.M.V.LIGI . FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 6598 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : E.P.No.3/2008 IN O.S.No.101/2005 OF THE MUNSIFFS COURT, KATTAPPANA EXHIBIT P2 : OBJECTION FILED BY the PETITIONER AND the 2nd RESPONDENT IN E.P.No.3/2008 IN O.S.No.101/2005 OF THE MUNSIFFS COURT, KATTAPPANA EXHIBIT P3 : OBJECTION FILED BY THE PETITIONER AGAINST ORDER 21 RULE 37 PROCEEDINGS BEFORE THE MUNSIFF COURT, KATTAPPANA EXHIBIT P4 : PROOF AFFIDAVIT FILED BY THE 1st RESPONDENT IN E.P.No.3/2008 IN O.S.No.101/2005 OF THE MUNSIFFS COURT, KATTAPPANA EXHIBIT P5 : TREATMENT CERTIFICATE ISSUED BY THE ORTHOPEDIC SURGEON ATTACHED THE ST. JOHN'S HOSPITAL, KATTAPPANA DTD 06.02.2010 EXHIBIT P6 : ORDER DTD 06.02.2010 IN E.P.No.3/2008 IN O.S.No.101/2005 OF THE MUNSIFFS COURT, KATTAPPANA True Copy THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.6598 of 2010 --------------------------------------- Dated this 24th day of November, 2010 JUDGMENT This petition is in challenge of Ext.P6, order dated 06-02-2010 in E.P.No. 3 of 2008 in O.S.No.101 of 2005 of the court of learned Munsiff, Kattappana issuing warrant of arrest to the petitioner on a finding that in spite of having sufficient means he has neglected/refused to pay the amount. Executing court for the purpose of finding means has relied on the evidence of PW1 who gave evidence on behalf of respondents/decree holders that petitioner has 4.66 acres of landed property cultivated with pepper and rubber and that petitioner is earning Rs.350/- per day as a driver. In the counter statement petitioner has stated that he does not have any landed property but he did not adduce any evidence. It is contended by learned counsel for petitioner that since petitioner suffered a fracture a few years back and was undergoing treatment petitioner was not able to appear in court on 06-02-2010 to give evidence. Learned counsel requested for an opportunity to the petitioner to adduce evidence regarding his plea of no means. Counsel for respondent No.1 has supported the order under challenge. W.P(C).No. 6598 of 2010 : 2 : 2. Ext.P5, certificate produced by petitioner in this proceeding dated 06-02-2010 states that petitioner had a history of fall occurred six years back and that petitioner was advised rest. According to the petitioner it is on account of the above physical disability that he did not appear in court on 06-02-2010 and give evidence regarding his plea of no means. Having regard to the circumstances stated, I am inclined to give petitioner an opportunity to adduce evidence but, on condition. Resultantly this petition is allowed in the following lines; Ext.P6, order issuing warrant of arrest to the petitioner is set aside and the matter is remitted to the executing court for fresh decision after giving petitioner opportunity to adduce evidence on condition that petitioner deposited in the executing court for payment to respondent No.1 `.15,000/- (Rupees Fifteen Thousand Only) on or before 22-12-2010 It is directed that deposit of the amount shall not be treated by executing court as indicating means of petitioner. In case the condition above stated is not complied executing court will be free to pass appropriate orders with available materials on record. Parties shall appear in the executing court on 23-12-2010. (THOMAS P JOSEPH, JUDGE) Sbna/-