IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 WP(C).NO. 17982 OF 2010(M) ------------------------------------------ (E.P. NO.349 OF 2009 IN O.S. NO.237 OF 2008, MUNSIFF'S COURT, MANJERI PETITIONER(S): 1ST RESPONDENT ----------------------------- P.J.JOSE, AGED 50 YEARS, S/O. CHACKO JOSEPH, 'ATHIRA', SCHOOLPPADI, MANJERI AMSOM, MULLAMBARA DESOM, MALAPPURAM DISTRICT. BY ADV. SRI.A.C.SANKARA VARMA RESPONDENT(S): PETITIONER ---------------------------------------------- MANAGER, SOUTH MALABAR GRAMIN BANK, PANDIKKAD BRANCH, MALAPPURAM DISTRICT. ADV. SRI.T.R.RAVI, SC, S.MALABAR G. BANK FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/08/2010 ALONG WITH WPC NO. 18079 OF 2010 WPC NO. 18014 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE COPY OF E.P. NO.349 OF 2009 IN O.S. NO.237 OF 2008 ON THE FILE OF MUNSIFF, COURT, MANJERI. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.17982 of 2010, W.P(C) No.18014 of 2010 and W.P(C) No.18079 of 2010 ==================================== Dated this the 02nd day of August, 2010 J U D G M E N T These Writ Petitions concerned petitioner who is common though decree holders are different. In W.P(C ) 17982 of 2010 petitioner is facing execution in E.P. No.349 of 2009 in respect of a money decree passed in O.S. No.237 of 2008 of the court of learned Munsiff, Manjeri. W.P(C) No.18014 concerned E.P. No.399 of 2008 in O.S. No.186 of 2006 of the same court while W.P(C) No.18079 of 2010 concerned E.P. No.544 of in ARC No.2237 of 2006 being executed in the same court. In all the cases respondent No.1-decree holder wanted to proceed against petitioner personally for realisation of the amount stating that in spite of having means he has not discharged the liability under the decree/award. It is not disputed that in W.P(C) Nos.17982 and 18079 of 2010 no evidence has been adduced regarding means and no orders have also been passed. In W.P(C ) No.18014 of 2010 executing court has passed Ext.P3, order which is challenged in that proceeding. It is contended that the said order W.P(C) No.17982 of 2010 & connected cases -: 2 :- is passed without conducting any enquiry as to the means of petitioner. Petitioner therefore seeks to set aside Ext.P3, order. There is also a prayer for consolidation of the execution petitions. Learned counsel for petitioner in these Writ Petitions contended that Ext.P3, order in W.P(C ) No.18014 of 2010 is illegal in that the said order is passed without conducting any enquiry as to the means of petitioner. It is also stated that in W.P(C) No.17982 of 2010 there is a direction issued by the court below that unless certain amount is paid on the date fixed warrant of arrest will be issued. Learned counsel for respondent No.1 in W.P(C) No.18014 of 2010 has invited my attention to paragraph six of the Writ Petition where reference is made to certain payments made by petitioner. 2. If there is a prayer for personal execution against petitioner and if warrant of arrest is to be issued, that has to be in compliance of Section 51 of the Code of Civil procedure. Mere fact that some payments were made by the petitioner is not by itself sufficient to prove his means to pay the amount due under the decree/award. It is seen from Ext.P3, order in W.P(C) No.18014 of 2010 and it is also not disputed before me that no W.P(C) No.17982 of 2010 & connected cases -: 3 :- evidence was recorded before ordering warrant of arrest against petitioner. Instead what is stated is that petitioner has no contention that he has no means and that he has stated he is willing to pay Rs.2,500/- as installments. Assuming that petitioner has expressed willingness to pay the installments that also cannot by itself be sufficient to prove his means. Executing court was not correct in issuing Ext.P3, order without conducting enquiry and entering finding regarding means of petitioner. 3. In W.P(C) No.17982 of 2010 no order issuing warrant of arrest has been produced. According to the learned counsel on the proceeding paper it is directed that in case certain amount is not paid warrant will be issued and since no amount was paid warrant of arrest was issued. It is seen that no enquiry as to the means of petitioner was conducted and hence the order issuing warrant of arrest cannot be sustained. 4. In W.P(C) No.18079 of 2010 it is stated by learned counsel for respondents also that there is no order issuing warrant. I make it clear that it will be open to respondent No.1 in all these Writ Petitions to prove means of petitioner and seek personal execution. So far as the prayer for consolidation of W.P(C) No.17982 of 2010 & connected cases -: 4 :- execution petitions are concerned, learned counsel states that execution petitions are already consolidated. In the circumstances Writ Petitions are disposed of in the following lines: Orders issuing warrant of arrest in all the cases involved in these Writ Petitions are set aside. It is made clear that it is open to respondent No.1 to prove means of petitioner and seek personal execution against him. THOMAS P. JOSEPH, JUDGE. vsv