IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 WP(C).NO. 647 OF 2010(O) ------------------------------------- AGAINST R.P. NO.27 OF 2009 AP.123/2007 OF SUB COURT,KOTTARAKKARA .................... PETITIONER(S): -------------------- K.RAMANKUTTY NAIR, S/O.KRISHNA PILLAI, AGED 63 YEARS, PRAKASH BHAVAN, KALAYAPURAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT. BY ADV. SRI.N.UNNIKRISHNAN RESPONDENT(S): ----------------------- SHEEJA KUMARI.R.S, W/O.JAYACHANDRAN, KALITHUNDIL VEEDU, ERATHU KULAKKADA, KALAYAPURAM, KOTTARAKKARA TALUK, KOLLAM DISTRICT. ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) FOR R1 SRI.A.R.DILEEP FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF ORDER DATED 9.6.2007 IN LDC A.P. NO.123 OF 2007. EXHIBIT P2 TRUE COPY OF DIARY IN EXECUTION PETITION ON THE FILE OF THE SUBORDINATE JUDGE, KOTTARAKKARA. EXHIBIT P3 TRUE COPY OF E.P. NO.4 OF 2009 IN AP 123 OF 2007 OF THE SUBORDINATE JUDGE, KOTTARAKKARA. EXHIBIT P4 TRUE COPY OF E.P. NO.27 OF 2009 IN AP PNO.123 OF 2007 OF SUBORDINATE JUDGE, KOTTARAKKARA. EXHIBIT P5 TRUE COPY OF AFFIDAVIT AND PETITION DATED 23.12.2009. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.647 of 2010 ==================================== Dated this the 25th day of May, 2010 J U D G M E N T Fight is between father and daughter, the latter having obtained a decree in the Adalath for recovery of money from the former. The latter sought execution of the decree by arrest and detention of the former. Pursuant to the application for personal execution notice as contemplated under Order XXI Rule 37(1) of the Code of Civil Procedure (for short, “the Code”) was issued to the petitioner. As seen from Ext.P2, copy of B Diary notice was served on petitioner and on 14.08.2009 on account his absence he was set ex parte and execution petition was posted for further steps on 08.11.2009. On that day respondent was examined as P.W1 and the executing court being satisfied from that evidence that petitioner having sufficient means has wilfully refused to pay the decree amount warrant of arrest was issued against the petitioner. Pursuant to that warrant petitioner was arrested and produced in the executing court on 07.12.2009 when he paid Rs.10,000/- and requested time to pay the balance amount. In the meantime petitioner was released on Kaichit. Petitioner is W.P(C) No.647 of 2010 -: 2 :- aggrieved by the order issuing warrant against him and has filed this Writ Petition. Learned counsel for petitioner contended that the procedure adopted by the executing court is illegal in that no evidence was recorded after petitioner was arrested and produced before the court as required under Order XXI Rule 40 of the Code. Reliance is placed on the decision in Raju v. Indian Overseas Bank (2006 [3] KLT 387). Learned counsel for respondent would contend that even before the executing court could comply with Rule 40 of Order XXI of the Code petitioner rushed to this Court and obtained an interim order of stay. 2. As seen from Ext.P2 B Diary and it is not disputed also, notice was issued to the petitioner on an application under Order XX1 Rule 37(1) of the Code but in spite of service of notice he did not respond. In that case procedure to be followed by the executing court was to issue warrant under Order XXI Rule 37(2) of the Code and going by Rule 40 of Order XXI, it is only when the judgment debtor either appears pursuant to the notice or is produced pursuant to the warrant of arrest referred to in Order XXI Rule 37(2) that enquiry is conducted as to the means of judgment debtor. That procedure has not been followed in this W.P(C) No.647 of 2010 -: 3 :- case and instead enquiry under Order XXI Rule 40 of the Code was conducted even before petitioner was arrested and produced before the executing court. As such the order dated 08.11.2009 finding means for the petitioner and issuing warrant is liable to be set aside and I do so. It will be open to the parties to adduce evidence regarding means of the petitioner as provided under Order XXI Rule 40 of the Code. Resultantly, Writ Petition is allowed. Order dated 08.11.2009 finding that petitioner has sufficient means, he has wilfully defaulted payment and issuing warrant is set aside. I make it clear that it will be open to the parties to adduce evidence regarding means of petitioner as provided in Order XXI Rule 40 of the Code and based on the result of the enquiry executing court will proceed with the E.P., as provided under law. THOMAS P. JOSEPH, JUDGE. vsv