IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 WP(C).No. 1651 of 2009(V) ------------------------- AGAINST THE ORDER IN EP. 484/2008 IN OS.415/2004 of PRL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): --------------- B.S.SHYAMKUMAR WORKING AS LAB ASSISTANT (PHYSICS) S.N.COLLEGE, CHEMPAZHANTHY, THIRUVANANTHAPURAM. BY ADV. SRI.SERGI JOSEPH THOMAS RESPONDENT(S): --------------- SANTHAKUMARI AMMA MADATHIL VEEDU, SWAMIYARMADOM, CHENKOTTAKONAM, CHEMPAZHANTHY MURI, ULIYAZHUTHURA VILLAGE THIRUVANANTHAPURAM. ADV. SRI.SREEKANTH S.NAIR FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 1651/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF E.P.NO.484/08 IN O.S.NO.415/2004 OF SUB COURT, THIRUVANANTHAPURAM. EXT.P2: COPY OF AFFIDAVIT AND PETITION IN E.P.NO.484/2008 IN O.S.NO.415/2004. EXT.P3: COPY OF ORDER DATED 6.12.2008 IN E.P.NO.484/08 IN O.S.NO.415/04 OF SUB COURT, TRIVANDRUM. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.1651 of 2009 --------------------------------------------- Dated this the 3rd day of March, 2009 JUDGMENT The judgment debtor in E.P.No.484/2008 in O.S.No.415 of 2004 on the file of the court of the Principal Subordinate Judge of Thiruvanathapuram challenges the order dated 6th December 2008 by which the court below ordered arrest of the petitioner in execution of the decree for payment of money. 2. The execution petition was filed by the respondent for realisation of the decree amount by arrest and detention of the judgment debtor and also for attachment and sale of his properties. The petitioner was set ex-parte on 6.11.2008. On 6.12.2008, the petitioner filed an application to set aside the order setting him ex-parte. The application is dated 5.12.2008. It is stated in the Writ Petition that the application was filed on 6.12.2008. In the application for setting aside the ex-parte order, the petitioner stated that he has to adduce evidence in the case and to produce documents. The petitioner is a Lab Assistant (Physics) in S.N.College, Chempazhanthy. In the WPC No.1651/2009 2 affidavit, the petitioner stated that after recovery, he is getting only a meager amount as salary. He stated that he could not appear on 6.11.2008 as he was not keeping well. 3. On 6.12.2008, the court below passed the order impugned without considering the application filed by the petitioner to set aside the order setting him to ex-parte. The order passed by the court below does not show that the decree holder has proved that the judgment debtor has the means to pay or has had since the date of the decree, the means to pay the decree debt and that he has refused or neglected to pay the same. The ingredients of the proviso to Section 51 are not made out in the order. The decree holder was not examined in the case to prove the means of the judgment debtor. It is true that the decree holder has filed an affidavit. The court below took it as unchallenged evidence. When the judgment debtor had approached the court with a prayer to set aside the order setting him ex-parte and had prayed for an opportunity to adduce evidence, the court below ought to have granted an opportunity of being heard to him. 4. I am of the view that in the facts and circumstances of WPC No.1651/2009 3 the case the court below was not justified in passing the order for arrest based only on the affidavit filed by the decree holder. The petitioner was not afforded an opportunity to cross examine the decree holder. 5. For the aforesaid reasons, the order dated 6th December 2008 is set aside. The court below shall consider the application filed by the petitioner to set aside the ex-parte order and pass appropriate orders. The question whether the petitioner has the means to pay the decree debt shall be considered afresh by the court below. The warrant for arrest issued against the petitioner shall stand recalled. The Writ Petition is allowed as above. K.T.SANKARAN, JUDGE csl