IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 OP(C).No. 2964 of 2011(O) ------------------------------------ [OS.NO.318/1999 OF ADDITIONAL SUB COURT, NORTH PARAVUR] .................... PETITIONER/PETITIONER JD NO.1: -------------------------------------------------- ABDUL AZEEZ,AGED 47 YEARS,S/O.HASSAN, FACT QUARTERS NO.D 66,ELOOR KARA,ELOOR VILLAGE. BY ADVS. SRI.N.K.MOHANLAL, SRI.P.A.ABHILASH. RESPONDENT/RESPONDENT/DH: ------------------------------------------------ ANGAMALY CHIT FUNDS(P),LIMITED, ANGAMALY,PIN-613 571. BY ADVS. SRI.DINESH R.SHENOY, SRI.G.HARIKRISHNAN (TRIPUNITHURA). THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2964/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1: TRUE COPY OF THE EP .309/2009 OF HON'BLE SUB COURT, NORTH PARUR. EXHIBIT P2: CARBON COPY OF ORDER IN EA .870/2011 UNDER SECTION 47 AND 151 CPC,DATED 5-8-2011. EXHIBIT P3: CARBON COPY OF ORDER IN EA.974/2011 DATED 23-8-2011. EXHIBIT P4: TRUE COPY OF SALARY STATEMENT OF PETITIONER FOR THE MONTH OF APRIL 2011. RESPONDENT'S EXHIBIT:- EXT.R1.A: COPY OF THE COUNTER AFFIDAVIT FILED IN EXT.P.3. APPLICATION. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.2964 of 2011 --------------------------------------- Dated this 09th day of November, 2011 JUDGMENT First judgment debtor in E.P.No.309 of 2009 in O.S.No.318 of 1999 of the Court of learned Additional Sub Judge, North Paravur is the petitioner challenging Exts.P2 and P3, orders. A decree for money was passed against petitioner and others and in favour of the respondent. Respondent sought execution in E.P.No.309 of 2009. It appears that though notices under Rules 22 and 37 were served on petitioner, he did not respond on time. That was followed by the executing court passing order to issue warrant of arrest to the petitioner on 09.11.2010. Thereafter petitioner appeared in the executing court and filed E.A.No.870 of 2011 purportedly under Secs.47 and 151 of the Code of Civil Procedure (for short, "the Code”) to recall the warrant of arrest. That application was dismissed by Ext.P2, order. Later, petitioner filed E.A.No.974 of 2011 for review of Ext.P2, order. That application was dismissed by Ext.P3, order. Thus Exts.P2 and P3, orders are under challenge. O.P(C).No.2964 of 2011 -: 2 :- 2. Learned counsel for petitioner contends that it was without sufficient evidence that the executing court ordered warrant of arrest to the petitioner. It is submitted that though petitioner is a salaried man the executing court did not take into account exemptions from attachment from the salary while considering means of petitioner. 3. Learned counsel for respondent submitted that it is admitted that petitioner is a salaried person and that his monthly salary as seen from Ext.P4 comes to `.34,716/-. It is contended by learned counsel that the deductions made from the monthly salary on account of other loans are not liable to be deducted under Sec.60 of the Code. It is also contended that E.A.No.974 of 2011 is not maintainable since E.A.No.870 of 2011 was in effect to review the order dated 09.11.2010 issuing warrant of arrest to the petitioner and an application for review of an order of a review is not maintainable under Rule 9 of Order 47 of the Code. 4. So far as the last argument of learned counsel for respondent is concerned, I am inclined to accept it. For, though E.A.No.870 of 2011 is styled as one under Secs.47 and O.P(C).No.2964 of 2011 -: 3 :- 151 of the Code to recall the warrant of arrest, it is in effect a request to review the order dated 09.11.2010. If that be so, in view of the bar under Rule 9 of Order 47 of the Code the subsequent application for review would not lie. Hence, though not for the above reason, there is no reason to interfere with the ultimate order dismissing E.A.No.974 of 2011. 5. What remains is whether Ext.P2, order on E.A.No.870 of 2011 requesting to recall (review) of the order dated 09.11.2010 is required to be interfered with. It is not disputed that the executing court acted on the affidavit of respondent to find means of petitioner. It is also not disputed that though petitioner was served with notice under Rule 37 of Order XXI of the Code, no warrant of arrest as contemplated under sub rule (2) of Rule 37 of Order XXI of the Code was issued to the petitioner on his not responding to the notice served under Rule 37(1) of Order XXI. The question whether from the monthly salary of petitioner any amount is liable to be exempted under Sec.60 of the Code is required to be decided by the executing court. In the circumstance, I am inclined to interfere with Ext.P2, order and allow I.A.No.870 of 2011 but subject to condition. O.P(C).No.2964 of 2011 -: 4 :- Resultantly this original petition is disposed of as follows: (i) Though not for the reason stated by the executing court, the challenge to Ext.P3, order is dismissed. (ii) Ext.P2, order is set aside and E.A.No.870 of 2011 will stand allowed subject to the following conditions: (a) Petitioner, if he has not complied with the order dated 06.09.2011 of this Court directing deposit of `.50,000/- shall deposit the said amount in the executing court within one week from this day. (b) Petitioner shall deposit a further sum of `.50,000/- (Rupees Fifty Thousand Only) in the executing court within a month from this day. (c) On compliance of the above conditions, Ext.P2, order will stand set aside and E.A.No.870 of 2011 will stand allowed. (iii) Thereon, executing court shall give opportunity to the petitioner to prefer objection to the notice under Rule 37 of Order XXI of the Code and after recording evidence enter appropriate finding regarding means of petitioner. (iv) In case conditions (a) and (b) for deposit of the amount is not complied, it is made clear that this original petition will stand dismissed in confirmation of Ext.P2, order. O.P(C).No.2964 of 2011 -: 5 :- (v) Respondent is permitted to withdraw the amount if already deposited or to be deposited in the executing court. (vi) In considering means of petitioner (in case Ext.P2, order stands set aside and E.A.No.870 of 2011 stands allowed) the executing court shall not take into account the deposits made by petitioner as per the orders of this Court. (THOMAS P. JOSEPH, JUDGE) Sbna/-