IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 WP(C).No. 4114 of 2008(M) ------------------------- AGAINST THE ORDER DATED 22/11/2007 IN EP 25/2007 IN OS.128/2005 of SUB COURT, PALA .................... PETITIONERS: ---------------- 1. THOMAS CHERIAN,S/O. N.C.CHERIAN RESIDING AT NEELIYARA, VELLIKULAM P.O. 2. N.C.CHERIAN, S/O. CHERIAN, AGED 74 YEARS NOW RESIDING AT NEELIYARA, TEEKOY P.O. BY ADV. SRI.P.C.HARIDAS RESPONDENT: ---------------- THE FEDERAL BANK LTD. REPRESENTED BY BRANCH MANAGER TEEKOY, TEEKOY VILLAGE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/02/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 4114 OF 2008 = = = = = = = = = = = = = = = Dated this the 4th day of February, 2008. J U D G M E N T This writ petition is preferred against the order of the Subordinate Judge, Pala in E.P.25/07 in O.S. 128/05 whereby he has directed issuance of arrest warrant against judgment debtors 2 and 3 for detention in civil prison. The plaintiff has obtained a decree for realisation of Rs.6,90,756/- with interest, costs etc. A reading of the decree would reveal that there is already a charge on the property and those documents of title were produced before the Court at the time of conducting the case. It is only on the basis of those documents the Court below has arrived at a decision regarding the means of the judgment debtors. 2. At the out set I would like to point out when a suit is filed on the basis of an equitable mortgage ordinarily the property has to be proceeded first and only in case of non satisfaction of the decree debt to proceed against the W.P.C 4114 OF 2008 -:2:- defendants personally and thereafter on their assets. Now the decree holder, Bank, in spite of having a charge over the property, is attempting to proceed against the defendants' personally. In these types of cases it is not proper and if it is the only items of properties then by virtue of a equitable mortgage the judgment debtors may not be able to deal with the property and even if they want to deal, the mortgage will stand as a stumbling block. Therefore I direct the Court below to consider the question afresh after hearing the judgment debtors and pass appropriate orders. Therefore the order under challenge is set aside and the matter is send back to the Court below for fresh consideration. Meanwhile it is made clear that the warrant of arrest shall not be executed till a final decision is taken. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-