IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 WP(C).No. 22328 of 2009(O) AGAINST THE ORDER DATED IN EP.NO. 78/04 IN OS.138/2002 of MUNSIFF'S COURT, ATTINGAL PETITIONER: --------------- K.NATARAJAN, MANILAL MANDIRAM, NEAR G.H.S, ATTINGAL VILLAGE. BY ADV. SRI.S.SOMAN SRI.R.SELVAKUMAR RESPONDENT: --------------- SREEKANTAN NAIR, S/O.SREEDHARAN PILLAI, VISHAK BHAVAN, MG.ROAD, ATTINGAL VILLAGE BY ADV. SRI.M.R.RAJESH SMT.A.K.PREETHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER DATED 24.10.2007 IN W.P.(C) NO.31572 OF 2007. EXT.P2 TRUE COPY OF THE ORDER DATED 25.6.2009 IN EP.NO. 78/04 IN OS.138/2002 OF MUNSIFF'S COURT, ATTINGAL. EXT.P3 TRUE COPY OF THE DEATH CERTIFICATE ISSUED ON 23.7.2010 BY THE ATTINGAL MUNICIPALITY. EXT.P4 TRUE COPY OF THE POSTMORTEM CERTIFICATE DATED 27.3.2010 ISSUED BY THE MEDICAL OFFICER. EXT.P5 TRUE COPY OF THE DEATH REPORT AS PER ORDER DATED 12.7.2010 ISSUED BY THE DISTRICT REGISTRAR BIRTH & DEATH. EXT.P6 TRUE COPY OF THE FIRST INFORMATION REPORT AND CRIME NO.199/2010 OF KADAKKAVOOR POLICE STATION FILED BEFORE THE SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 22328 OF 2009 O ------------------------------------------------------ Dated this the 10th day of February, 2011 JUDGMENT The petitioner is the judgment debtor in O.S.No.138 of 2002 on the file of the Munsiff's Court, Attingal. The decree is for payment of money. Execution Petition was filed for realization of the decree amount by arrest and detention of the judgment debtor in civil prison. It would appear that an order for arrest was passed by the court below. That order was challenged in W.P.(C) No.31572 of 2007. This Court, as per the order dated 24.10.2007, set aside the order passed by the executing court and directed the executing court to afford an opportunity to the decree holder to adduce positive evidence to prove the means of the judgment debtor. For that purpose, the matter was remitted back to the executing court. Thereafter, the executing court passed the following order on 28.5.2009: “No evidence adduced for the judgment debtor. Evidence adduced by the decree holder clearly shows that the judgment debtor has sufficient means to pay the decree debt. Issue arrest warrant against the JD. Call on 25/06/2009.” W.P.(C) NO.22328 OF 2009 O :: 2 :: Ext.P2 order dated 25.6.2009 was passed issuing arrest warrant. 2. In spite of the detailed order passed by this Court in W.P. (C) No.31572 of 2007, the court below has not passed a speaking order in the Execution Petition before deciding to issue arrest warrant to the judgment debtor. I am sure that the judgment in W.P. (C) No.31572 of 2007 was not even considered by the court below. The decisions rendered by this Court and the Supreme Court would clearly show that the contentions put forward by the parties should be considered before issuing arrest warrant for the arrest and detention of the judgment debtor. The court below passed a cryptic order and on that basis issued arrest warrant. 3. The order dated 28.5.2009 as well as Ext.P2 order dated 25.6.2009 are therefore, set aside. The executing court shall pass fresh orders after affording an opportunity of being heard to both parties. 4. It is stated that pursuant to the interim order, a sum of ` W.P.(C) NO.22328 OF 2009 O :: 3 :: 20,000/- was deposited by the judgment debtor. The decree holder would be entitled to withdraw the same. The Writ Petition is disposed of as above. (K.T.SANKARAN) Judge ahz/