IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 OP(C).No. 1946 of 2011(O) ------------------------------------ [EA.NO.1149/10 IN EP.NO.145/10 IN OS.NO.262/2007 OF PRINCIPAL SUB COURT,ERNAKULAM] .................... PETITIONER: ------------------- VIJAYAN, S/O.KRISHNAN, RESIDING AT KATTUNGAL HOUSE, EROOR VASUDEVA ROAD, PALARIVATTAM, KOCHI -682 025. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, ADVS. SRI.T.C.SURESH MENON, SRI.JIBU P THOMAS, SRI.P.S.APPU, SRI.A.R.NIMOD, SRI.C.A.ANOOP, SRI.MATHEWS RAJU. RESPONDENT: --------------------- M.J.THOMAS, S/O.JOSEPHM RESIDING AT ST.VINCENT CROSS ROAD, ERNAKULAM. BY ADVS. SRI.K.C.CHARLES, SRI.M.POLY MATHAI, SRI.E.N.HARI, SRI.VIMAL K.CHARLES, SMT.A.T.RENJU. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.1946/2011-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE E.P.NO.145/2010 IN O.S. NO. 262/2007 ON THE FILE OF THE SUB COURT, ERNAKULAM DTD. 20/03/2010. EXT.P.2: COPY OF THE OBJECTION FILED BY THE PETITIONER DTD. 27/10/2010. EXT.P.3: COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER TO E.A. NO. 1149/2010 DTD. 06/04/2011. EXT.P.4: COPY OF THE DISCHARGE SUMMARY ISSUED BY THE MEDICAL TRUST HOSPITAL, KOCHI DTD. 30/10/10. EXT.P.5: COPY OF THE CORONARY ANGIOPLASTY REPORT ISSUED BY THE MEDICAL TRUST HOSPITAL DTD. 28/10/10. EXT.P.6: COPY OF THE ORDER IN E.A. NO. 1149/2010 IN E.P.NO.145/2010 IN O.S. NO. 262/2007 ON THE FILE OF THE PRL. SUB COURT, ERNAKULAM DTD. 06/04/2011. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1946 of 2011 -------------------------------------- Dated this the 17th day of August, 2011. JUDGMENT Petitioner is the judgment debtor in E.P.No.145 of 2010 in O.S.No.262 of 2007 of the court of learned Principal Sub Judge, Ernakulam. Respondent obtained a decree for recovery of money from petitioner and sought personal execution in E.P.No.145 of 2010 alleging that in spite of having sufficient means petitioner has not paid the amount. Petitioner preferred Ext.P2, objection claiming that he has no means, nor possessed of any property. Respondent filed E.A.No.1149 of 2010 under Order 21 Rule 41 of the Code of Civil Procedure (for short, “the Code”) to direct petitioner file affidavit regarding the assets he has/had. Petitioner preferred Ext.P3, objection on 06.04.2011 requesting the executing court to grant time to file affidavit. It is stated that petitioner is a cardiac patient and that he has undergone treatment at Medical Trust Hospital and produced medical certificate to that effect. Executing court by Ext.P6, order passed the same day rejected the request for time and directed detention of petitioner in the civil prison for failure to comply with the order. Executing court pointed out that the medical certificate revealed that petitioner was discharged from the hospital on 30.10.2010 and there is no sufficient reason to grant further time. Ext.P6, order is under challenge. 2. When this matter came up for admission this Court asked petitioner OP(C) No.1946/2011 2 whether he is ready and willing to file affidavit as prayed for in E.A.No.1149 of 2010. Learned Senior Advocate appearing for petitioner submits that if time is given petitioner is prepared to file proper affidavit in answer to E.A.No.1149 of 2010. I have heard learned counsel for respondent also. 3. It is seen from Exts.P4 and P5 that petitioner was undergoing treatment in the hospital for some time for heart problem. E.A.No.1149 of 2010 came up for hearing before the executing court on 14.2.2011, it was allowed and petitioner was directed to file affidavit. On 06.04.2011, on the eve of closing of courts for summer vacation petitioner requested time to file affidavit. 4. It is true that the medical certificate shows that petitioner was discharged from the hospital on 30.10.2010. But, having regard to the circumstances stated, the consequence of non-filing of the affidavit and considering the willingness expressed by petitioner to file proper affidavit, I am inclined to think that petitioner should be given an opportunity to do that. Resultantly this Original Petition is allowed. Ext.P6, order dated 06.04.2011 (in E.P.No.145 of 2010 in O.S.No.262 of 2007) of the court of learned Principal Sub Judge, Ernakulam is set aside and E.A.No.1149 of 2010 is remitted to the court of learned Principal Sub Judge, Ernakulam for fresh decision. Petitioner shall file affidavit as provided under Order 21 Rule 41(2) of the Code in answer to E.A.No.1149 of 2010 within a period of three weeks from the date of receipt of a copy of this judgment in the court of learned Principal OP(C) No.1946/2011 3 Sub Judge. Learned Sub Judge shall, on filing the affidavit as aforesaid enquire into the matter as provided under law and pass appropriate orders as expeditiously as possible. THOMAS P.JOSEPH, Judge. cks