IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 OP(C).NO. 2369 OF 2011(O) --------------------------------------- AGAINST THE ORDER IN EP 280/2010 IN OS.184/2009 OF MUNSIFF COURT, TIRUR .................... ETITIONER: ------------------ VIJAYAN, AGED 50 YEARS, S/O. KARAPPAN, KALLIDUMBIL HOUSE, TIRUR TALUK, KURAMBATTUR AMSOM, MALAPPURAM. BY ADV. SRI.V.M.KRISHNAKUMAR RESPONDENT(S): -------------------------- KUNNAMKULAM FINANCING COMPANY LIMITED, SRUTHI PARADISE SHIPPING CENTRE, CHOONDAL P.O., THRISSUR DISTRICT, PIN-680 502. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.2369 OF 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE EXECUTION PETITION E.P. NO.280 OF 2010 OF THE MUNSIFF COURT, TIRUR. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 5.7.2011 IN E.A. NO.177 OF 2011 OF MUNSIFF COURT, TIRUR. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 8.7.2011 IN E.A.NO.178 OF 2011 OF MUNSIFF COURT, TIRUR. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2369 of 2011 ==================================== Dated this the 22nd day of July, 2011 J U D G M E N T Petitioner is the first judgment debtor in E.P. No.280 of 2010 of the court of learned Munsiff, Tirur. Respondent is executing the decree for recovery of money. As the learned counsel submits, notice under Order XXI Rule 22 of the Code of Civil Procedure (for short, “the Code”) was issued to the petitioner and the case was posted on 18.01.2011 for his appearance. However, on account of illness petitioner could not make his appearance on that day. Petitioner was set ex parte and thereafter warrant of arrest was issued to the petitioner. Now petitioner is under the threat of arrest. Petitioner filed E.A. No.177 of 2011 to set aside the ex parte order but that application was dismissed as per Ext.P2, order. Petitioner also filed Ext.P3, E.A. No.178 of 2011 to recall warrant. Learned Munsiff has disallowed that application as per Ext.P3, order. Exhibits P2 and P3 orders are under challenge. 2. From what learned counsel has submitted, what is revealed is that warrant is issued to the petitioner under Rule 37 (2) of Order XXI of the Code since he did not appear in the court O.P(C) No.2369 of 2011 -: 2 :- pursuant to the notice under sub-rule (1) of Rule 37, served on him. Purpose of issue of warrant under Rule 37(2) of Order XXI is to bring the judgment debtor before court so that enquiry under Rule 40 of Order XXI can be conducted. It does not appear to me that the enquiry under Rule 40 of Order XXI was conducted. Learned counsel submitted that petitioner is prepared to appear before the executing court (for enquiry under Rule 40) if some time is granted. Having regard to the circumstances stated I am inclined to grant some respite to the petitioner. Resultantly, Original Petition is disposed of granting petitioner three weeks' time from this day to appear before the executing court subject to the following conditions: (a) Petitioner shall deposit Rs.25,000/- (Rupees Twenty five thousand only) in the executing court within the said period of three weeks for payment to the respondent. (b) Warrant of arrest will stand in abeyance during the said period of three weeks or till petitioner appears in the executing court, whichever is earlier. (c) On appearance it is open to the O.P(C) No.2369 of 2011 -: 3 :- petitioner to request the executing court to release him on furnishing security (if such a course is found necessary). THOMAS P. JOSEPH, JUDGE. vsv