IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 25TH JANUARY 2008 / 5TH MAGHA 1929 WP(C).No. 2394 of 2008(I) ------------------------- AGAINST THE ORDER IN EP 59/2004 IN OS.122/1992 of MUNSIFF COURT, CHANGANACHERRY .................... PETITIONER: ------------ M.K.CHELLAPPAN, AGED 74 YEARS, S/O.K.M.KRISHNAN, MUTTATHUPARAMBU VEEDU, CHETHIPUZHA VILLAGE, VALIYAKULAM, KURISUMMOODU P.O., CHANGANACHERRY - 4, KOTTAYAM DISTRICT. BY ADV. SRI.P.K.JOSE RESPONDENTS: ------------- 1. JOSEPH SCARIAH, MADAKKATTAYA, CHIRAKKUZHIYIL PAZHAYACHIRA, THRIKKODITHANAM P.O., CHANGANACHERRY. 2. A.K.BAPPUJI SREERENGATH VEEDU, MADAPPALLY VILLAGE, P.O.CHANGANACHERRY, KOTTAYAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 2394 OF 2008 --------------------- Dated this the 25th day of January, 2008 JUDGMENT This writ petition is filed for a direction to the Munsiff, Court, Changanacherry, not to enforce the warrant issued against the petitioner and to consider the execution application filed by him u/s 59 of the CPC. 2. Learned counsel submits that the writ petitioner is a retired pensioner who is aged 74 and is suffering from non healing wound in the leg and is unable to raise the fund. He further submits that whatever pension he receives is spend for his treatment and day to day expenses and the petitioner is trying his level best to pay off the decree debt. 3. The Apex Court in the decision reported in Jolly George Varghese v. Bank of Cochin [1980 (2) SCC 360] held that if a person is suffering from any serious ailment and has to spend money for the treatment which makes him unable to wipe off the decree debt, it is a factor that has to be considered for the reason that it is not intentional or evadement of the payment so as to curtail the civil WPC NO 2394/08 2 liberty of that person. However an application is also filed by the petitioner u/s 59 of the CPC on the ground of illness. First of all, if there is reasonable explanation of the factum that whether Rs.3,000/- derived as pension is sufficient to make the entire payment in a lump, are all questions to be considered by the court below. Therefore, I set aside the order passed by the court below and remit back the matter to the same court with a direction to consider the question afresh after affording equal opportunities to the writ petitioner as well as the respondents to prove their rival contentions. The writ petitioner is directed to appear before the lower court on 25.2.08. On his appearance, the court below shall give notice to the counsel for the respondents herein and fix a date for hearing. I make it clear that till the disposal of the matter afresh, the arrest warrant shall not be executed. M.N.KRISHNAN, JUDGE vps WPC NO 2394/08 3