IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 WP(C).No. 24986 of 2010(O) -------------------------- AGAINST THE ORDER IN EP 134/2009 IN OS.338/2001 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER: --------------- P.NADEER, AGED 56 YEARS, S/O.POOKUNJU, SHAMNA MANZIL (RESIDING AT SHANAVAZ MANZIL, CHAVARA BRIDGE P.O., KOLLAM DISTRICT). BY ADV. SRI.K.ABDUL JAWAD RESPONDENTS: --------------- 1. M/S.MUTHOOT LEASING AND FINANCE LTD., MUTHOOT VEHICLE AND ASSET FINANCE LTD., VADAYATTIKOTTA, KOLLAM, REP. BY MANAGING DIRECTOR, GEORGE ALEXANDER, S/O.LATE GEORGE, G343, PANAMPALLY NAGAR, COCHIN - 682 036, REP. BY POWER OF ATTORNEY HOLDER, S.SUBHASH. 2. SREE RANJAN, CHIRAKKAL HOUSE, PUTHENTHURA P.O., NEENDAKARA, KOLLAM - 691 588. 3. K.A.ANTONY (DIED), KAZHANKATTUVILA THEKKATHIL, CHAVARA SOUTH P.O., KOLLAM 691 584. ADV. SRI.C.S.MANILAL FOR R1 SRI.S.NIDHEESH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24986 of 2010(O) APPENDIX PETITIONER's EXHIBITS:- EXT.P1 : E.P.No.134/09 in O.S.No.338/01 before the Principal Sub Court, Kollam filed by the respondent. EXT.P2 : Notice dtd.25/11/2001, issued to the petitioner. EXT.P3 : Counter Affidavit in E.P.No.134/2009 in O.S.No.338/2001 filed by the petitioner before the Principal Sub Court, Kollam. EXT.P4 : Order dtd.20/5/2010 in E.P.No.134/09 in O.S.No.338/01 passed by the Principal Sub Court, Kollam. True copy P.A. to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.24986 of 2010 --------------------------------------- Dated this 06th day of October, 2010 JUDGMENT This petition is in challenge of Ext.P4, order finding means of petitioner No.1/judgment debtor No.1 but at the same time issuing warrant of arrest to petitioner and respondent Nos.2 and 3/judgment debtor Nos.2 and 3. Learned counsel for petitioner/judgment debtor No.1 states that when the matter came up for hearing on 20-05-2010 it was represented on behalf of respondent No.1 that proof affidavit is filed. Counsel for petitioner submitted that a copy of proof affidavit is not given to him. Counsel was under the impression that the case was adjourned for cross examination and later he learned to his dismay that warrant was ordered noting that there was no representation for petitioner and respondent Nos.2 and 3. Learned Sub Judge found means for petitioner and ordered to issue warrant to the petitioner and judgment debtor Nos.2 and 3. That order is under challenge. Learned counsel requested that an opportunity may be given to adduce evidence in support of his plea of no means. I have heard learned counsel for respondents also. Counsel for petitioner in the executing court has filed an W.P(C).No.24986 of 2010 : 2 : affidavit that on 20-05-2010 he was present in court on behalf of petitioner and had represented that he was not given a copy of the proof affidavit. He sought adjournment and the case was adjourned. He was under the impression that adjournment was for cross examination of the deponent. But he found from the A diary the entry that warrant was ordered to petitioner and judgment debtor Nos.2 and 3. 2. Having regard to the facts and circumstances of the case I am inclined to give petitioner an opportunity to adduce evidence. The order under challenge to the extent it concerned petitioner is set aside and I do so. Resultantly this petition is allowed and Ext.P4, order to the extent it concerned petitioner/judgment debtor No.1 is set aside and the matter is remitted to the executing court for fresh decision after giving petitioner an opportunity to cross examine the deponent and adduce evidence in support of his plea of no means. Respondent No.1 shall give a copy of the proof affidavit to the petitioner. In case a copy of proof affidavit is not given it is open to the petitioner to make a representation in that regard to learned Sub Judge. Learned Sub Judge is directed to conduct enquiry into the matter and decide the question at the earliest. (THOMAS P JOSEPH, JUDGE) Sbna/-