IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 WP(C).No.770 of 2009 (N) ------------------------ OS.3656/2003 of II ADDL.M.C.,THRISSUR .................... PETITIONER: ----------- UNNIKRISHNAN, S/O.VELLAYATH AMMINI AMMA, THIRUVAMBADY DESOM, THRISSUR VILLAGE/DESOM. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT: ---------- SUHRUDHA KURIES & LOANS (P) LTD., VIYYUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.Balachandran, J. -------------------------- W.P.(C)No.770 of 2009 N -------------------------- JUDGMENT Petitioner challenges Exhibit P4 order, whereby, E.A.No.2384/08, filed by him to set aside the ex parte order on E.P.No.656/06 in O.S.No. 3656/03, was dismissed. The respondent/decree holder filed E.P.No.656/06 praying for personal execution of the money decree against the petitioner/judgment debtor. It is the case of the petitioner that notice was not served directly on him and had been published only in an evening daily, which was not having wide circulation and therefore, he was not aware of the notice issued under Order XXI Rule 37 CPC. Counsel for the petitioner submits that Exhibit P2 is the application, on which the court below has passed Exhibit P4 order. In the affidavit filed along with Exhibit P2 (E.A.No.2384/08), there is no mention as to how the petitioner came to know that there is WPC 770/09 2 warrant pending against him, though the counsel for the petitioner submitted that the petitioner informed him that the police came over and made enquiries about him. The information so furnished to the counsel by the petitioner cannot be correct, as warrant in execution of a money decree will not be issued through police. However, when brought under arrest, petitioner will be having an opportunity to raise a contention that he is not having sufficient means to discharge the debt, though he has forfeited the first opportunity to raise the contention of no means. This writ petition, in the circumstances, is not maintainable and is dismissed. Counsel for the petitioner prays that petitioner may be given permission to surrender before the court below without warrant being executed. He is granted permission to surrender before court through Lawyer and then advance the contention regarding no means, provided, he establishes his identity as the WPC 770/09 3 judgment debtor. Petitioner may surrender before the execution court positively on 12.1.2009. Issue copy of this judgment to the counsel for the petitioner urgently. 8th January, 2009 (K.P.Balachandran, Judge) tkv