IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 OP(C).NO. 534 OF 2010(O) -------------------------------------- AGAINST THE ORDER DATED 03/08/2010 IN EP.260/1999 IN OS.755/1991 OF PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER: -------------------- K.J.RAGHU, S/O.K.J.JINARAJAN, AGED 48 YEARS, AMBELIPPADOM ROAD, PANCHAVADY, VYTTILA, ERNAKULAM. BY ADV. SRI.ZAKEER HUSSAIN SMT.K.A.SANJEETHA RESPONDENT(S): ------------------------- 1. NILAM ENTERPRIZES,REP.BY ITS MANAGING PARTNER, N.A.VARGHESE, AGED 54 YEARS, S/O.NILAVARATHU ANTHA, NILAVARATHU HOUSE, KOCHI-17 2. M/S.HOME CLUB SERVICE, REP.BY ITS FORMER MANAGING PARTNER, AGED ABOUT 49 YEARS, NOW RESIDING AT M-5, SUDHARSAN GARDENS, VELACHERY HIGH ROAD, GUINDY, MADRAS-600 031. 3. K.J.DILIP, BUSINESS MAN, AGED ABOUT 49, FORMER PARTNER OF M/S.HOME CLUB SERVICE, MAYI, R.N.H.ROAD, SASTHAMANGALAM, TRIVANDRUM-695 010. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON ON 24/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE COPY OF THE EXECUTION PETITION NO.260 OF 1999 IN O.S. NO.755 OF 1991 OF THE PRINCIPAL SUB COURT, ERNAKULAM. EXHIBIT P2 TRUE COPY OF THE DECREE DATED 31.3.1995 IN O.S. NO.755 OF 1991 OF THE FIRST ADDITIONAL SUB COURT, ERNAKULAM. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 3.3.2004 OF DISTRICT COURT ERNAKULAM IN I.A. NO.533 OF 2004 IN C.M.A. NO.25 OF 2004. EXHIBIT P4 TRUE COPY OF THE BANK GUARANTEE DATED 24.5.2004. EXHIBIT P5 TRUE COPY OF THE E.A. NO.817 OF 2007 IN O.S. NO.755 OF 1991 OF THE PRINCIPAL SUB COURT, ERNAKULAM. EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.A. .NO.817 OF 2007 IN O.S. NO.755 OF 1991 OF THE PRINCIPAL SUB COURT, ERNAKULAM. EXHIBIT P7 TRUE COPY OF THE E.A. NO.829 OF 2007 IN O.S. NO.755 OF 1991 FILED BY THE PETITIONER. EXHIBIT P8 TRUE COPY OF THE ORDER IN W.P(C) NO.26361 OF 2007 OF THE HONOURABLE HIGH COURT. EXHIBIT P9 TRUE COPY OF THE BALANCE STATEMENT. EXHIBIT P10 TRUE COPY OF THE APPLICATION TO RECALL WARRANT. EXHIBIT P11 TRUE COPY OF THE ORDER DATED 3.8.2010 OF THE SUB COURT, ERNAKULAM. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== O.P(C) No.534 of 2010 ==================================== Dated this the 24th day of November, 2010 J U D G M E N T Notice issued to respondent No.1 is not returned. In view of the order I propose to pass in this petition notice to the respondents is dispensed with. 2. Exhibit P11, order issuing warrant of arrest to petitioner-judgment debtor No.3 in E.P. No.260 of 1999 in O.S. No.755 of 1991 of the court of learned Principal Sub Judge, Ernakulam is under challenge. According to the learned counsel in the light of Ext.P9, statement filed by petitioner in the executing court and subsequent payments including the amount deposited pursuant to the order of this Court on 02.11.2010 no further amount is due to respondent No.1 and hence warrant of arrest issued to the petitioner is liable to be recalled. It is also the contention of learned counsel that petitioner filed Ext.P10, application to recall the warrant. But that application virtually stands dismissed in view of Ext.P11, order. 3. Exhibit P9 is the statement filed by petitioner in the executing court. As per that statement the balance amount due to O.P(C) No.534 of 2010 -: 2 :- respondent No.1 as on 24.02.2009 was `.1,81,214.70. According to the petitioner after the said date petitioner paid various amounts aggregating to Rs.5,55,000/- and as per order of this Court dated 02.11.2010 a further amount of `.30,000/- has also been deposited for payment to respondent No.1. Learned counsel submits that by the said deposit entire liability of respondent No.1 is discharged and at any rate without ascertaining the balance amount due executing court was not correct in issuing Ext.P11, order of warrant of arrest to the petitioner. 4. It is seen that petitioner has filed Ext.P9, statement in the executing court. Certainly the balance amount if any due to respondent No.1 had to be ascertained before issuing warrant of arrest to the petitioner. Respondent No.1 does not seem to have filed a statement showing the balance amount if any due. In such circumstance the proper course open to the executing court was to decide the balance amount if any due to respondent No.1 and if such amount is not paid within a reasonable time issue warrant of arrest to the petitioner. Having regard to the facts and circumstances of the case I am inclined to keep in abeyance Ext.P11, order till the executing court decides on balance amount O.P(C) No.534 of 2010 -: 3 :- if any due to respondent No.1. Resultantly this Original Petition is allowed in the following lines: (i) Executing court is directed to ascertain whether, in the light of the payment made by petitioner as claimed by him in Ext.P9, statement and certified as provided under law and the further deposit of `.30,000/- made by the petitioner pursuant to the order passed by this Court 02.11.2010 any further amount is due to respondent No.1 and if so fix the amount so payable. (ii) In doing so executing court may also direct respondent No.1 to file a statement as to the balance amount if any due to it. (iii) In case on such verification any further amount is found payable by the petitioner to respondent No.1, executing court shall give O.P(C) No.534 of 2010 -: 4 :- reasonable time to the petitioner to pay the said amount and if the amount is not paid within the time thus granted, the executing court may proceed further against petitioner as per Ext.P11, order. Until such time Ext.P11, order will remain in abeyance. THOMAS P. JOSEPH, JUDGE. vsv