IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 WP(C).No. 31678 of 2009(R) -------------------------- OP.233/2005 of FAMILY COURT,KOZHIKODE .................... PETITIONER : --------------- SHOUKATH @ ABDUL JAFAR, S/O.HAMZA, KARIPARAMBATH HOUSE, PERACHANNGHADI, NADUVATTOM, KOZHIKODE. BY ADV. SMT.K.A.ANGEL TREENA SMT.ARLISS TRENCY ANTONY RESPONDENTS : --------------- 1. K.T.AABIDHA, D/O.NAZAR, EDAPARUTHI PARAMBU, CHERUVANNUR AMSOM, KOLTHARA DESOM, KOZHIKODE TALUK. 2. STATE OF KERALA, REPRESENTED BY GOVT.PLEADER, HIGH COURT OF KERALA, ERNAKULAM. GOVERNMENT PLEADER SMT.SMITHA SUKUMARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(C) No.31678 of 2009 ------------------------------------- Dated this the 6th day of November, 2009 JUDGMENT BASANT, J. Heard. The petitioner is the judgment debtor and he is obliged to pay an amount of Rs.50,000/- to his wife under the order passed in O.P.No.233 of 2005. No appeal has been preferred. The order has become executable. An execution petition has been filed. Notice was served on the petitioner. He appeared before court on 14.09.09. He was granted time to file objections. On 09.10.09 when the matter came up for hearing, objections were not filed. The court, in these circumstances, on the available materials, issued a warrant of arrest against the petitioner. The petitioner has come running to this Court now to assail the course adopted by the court below. The petitioner wanted to raise a plea of no means. Time had not been given to raise such a plea there. This in short is the grievance raised. It is prayed that the petitioner may be permitted to appear before the court below, file objections with an application and before the court considers such objections, the warrant of arrest may not be executed. This in short is the prayer made. W.P(C) No.31678 of 2009 2 2. We have considered the submissions of the learned counsel for the petitioner. The available indications suggest that the E.P was posted to 14.09.09, on which day, the petitioner appeared and sought time. On 09.10.09 as the petitioner had not filed objections warrant was issued. 3. We are not satisfied that the course adopted by the court below is incorrect. However, we find merit in the request of the learned counsel for the petitioner that the petitioner may be given an opportunity to appear before the Family Court, file an application to receive objections and request fresh consideration of the matter before the warrant of arrest against him is executed. Subject to appropriate terms, we are satisfied that the said request can be allowed. 4. Considering the nature of the order which we propose to pass, we are of the opinion that it is not necessary to wait for issue and return of notice to the respondents. 5. In the result: a) This Writ Petition is allowed subject to conditions; b) The petitioner shall appear before the Family Court on or before 16.11.09 and deposit an amount of Rs.15,000/- (Rupees Fifteen thousand only) towards the amount due. Till W.P(C) No.31678 of 2009 3 16.11.09, the warrant of arrest issued against him shall not be executed. He shall appear before the Family court on 16.11.09 and shall be at liberty to make an application to receive his objections. If such application is filed, the Family Court shall not execute the warrant issued against him till such request is considered and if accepted, the contentions raised in such objections is considered on merits. The said amount of Rs.15,000/-, if deposited, shall be released immediately to the claimant/respondent. 6. Hand over a copy of this judgment to the learned counsel for the petitioner for production before the Family Court, Kozhikode forthwith. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-