IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 WP(C).No. 16185 of 2010(O) -------------------------- EA NOS.246 & 247/2010 IN EP NO.416/2009 IN OS.454/2007 of PRINCIPAL MUNSIFF COURT,THIRUVANANTHAPURAM .................... PETITIONER(S): --------------- SREEKUMARAN NAIR, AGED 50 YEARS, S/O. KUTTAN PILLAI, T.C 22/731, DEVI BHAVAN, ATTUKAL, MANACADU.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.THIRUMALA P.K.MANI RESPONDENT(S): --------------- JAYAPRAKASH, KAITHAYIL, WILLS COTTAGE, PUNNAVOOR, MARANALLOOR VILLAGE, NEYYATINKARA. ADV. SRI.D.SAJEEV THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.16185/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER IN EA NO.246/2010 EXT.P2 TRUE COPY OF ORDER IN EA NO.247/2010 EXT.P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN EXECUTION PETITION EXT.P4 TRUE COPY OF SALARY CERTIFICATE ISSUED TO THE PETITIONER EXT.P5 TRUE COPY OF PETITION TO RECALL THE WARRANT FILED BY THE EXECUTION COURT //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.16185 of 2010 -------------------------------------- Dated this the 29th day of June, 2010. JUDGMENT Exts.P1 and P2 are under challenge at the instance of petitioner/judgment debtor against whom there is a decree for payment of money to the respondent. According to the petitioner, he did not get notice from the execution proceedings and was set exparte. He filed application to set aside the exparte order accompanied by an application to condone the delay under Section 5 of the Limitation Act (for short, “the Act”). Executing court dismissed both the applications as per Exts.P1 and P2, orders holding that Section 5 of the Act has no application to a petition under Order 21 of the Code of Civil Procedure (for short, “the Code”). That was followed by an order for issue of warrant against petitioner. Petitioner then filed an application (copy of which is Ext.P5) to recall the warrant and consider his objection to the issue of warrant of arrest against him. Prayer is to recall the warrant and a direction to the executing court to consider Ext.P5 and pass orders on it. Learned counsel contends that before issuing warrant against petitioner no enquiry regarding his means was conducted and no finding entered that he has means but inspite of that he has neglected and refused to pay the amount due under the decree. Learned counsel for respondent invited my attention to the statement in WP(C) No.16185/2010 2 paragraph No.6 of the objection filed by petitioner where petitioner stated that he is willing to pay the amount due under the decree in installment of Rs.500/- per month. 2. No doubt Section 5 of the Act is not applicable to a petition under Order XXI of the Code and hence when a party seeks to set aside the exparte decree under Order XX1 Rule 106 of the Code, Section 5 of the Act cannot apply but under Order XXI Rule 37(2) of the Code when a notice to the petitioner is not answered, it shall be followed by a warrant of arrest if the decree holder so requires. It is when the judgment debtor appears or is brought before the executing court that an enquiry has to be conducted regarding his means. It is not disputed that executing court did not conduct any enquiry regarding means of the petitioner. Enquiry has to be conducted after petitioner appeared pursuant to the notice under Rule 37(1) or is brought pursuant to the warrant under Rule 37(2) of Order XXI of the Code 3. As per the direction of this Court petitioner has deposited Rs.5,000/- in the executing court. Petitioner is directed to deposit a further sum of Rs.5,000/- in the executing court within three weeks from today. The amount in deposit and to be deposited can be withdrawn by the respondent. Executing court has to conduct enquiry regarding means of the petitioner and the question of issue of warrant will follow that finding. Resultantly this Writ Petition is allowed in the following lines: i. Order issuing warrant of arrest to the petitioner is set aside. WP(C) No.16185/2010 3 ii. Executing court is directed to conduct enquiry regarding means of the petitioner before deciding upon to issue warrant of arrest against petitioner. iii. Petitioner is directed to deposit in the executing court for payment to respondent Rs.5,000/- (Rupees Five thousand only) within three weeks from this day. iv. The amount deposited and to be deposited by the petitioner can be withdrawn by the respondent. v. Parties will be given opportunity to adduce evidence regarding means of the petitioner. vi. Parties shall appear in the executing court on 30.07.2010. THOMAS P.JOSEPH, Judge. cks