IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 OP(C).No. 466 of 2010(O) ------------------------ EP.NO.190/2009 IN OS.119/2007 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER(S): ------------------------- ANTONY GOMES, AGED 61 YEARS, S/O.IMMANUEL, PEACE NET,UDAYA MARTHANDAPURAM, THILLARY, MUNDAKKAL WEST, KOLLAM. BY ADVS. SRI.ALEX N.MATHEW (KOLLAM), SRI.H.RAMANAN, SRI.JAMES JOSE. RESPONDENT(S): --------------------------- AGINI STANSILAUS, W/O.STANSILAUS, R.S.BHAVAN, VISHNNATH KAVU NAGAR,THIRUMULLAVARAM, KOLLAM-691 012. BY ADV. SRI.THYPARAMBIL THOMAS THOMAS THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.466/2010 O APPENDIX PETITIONER'S EXHIBITS: P1:` E.P.190/09 IN O.S.119/07 OF SUB COURT, KOLLAM DTD. 4/06/09. P2: OBJECTION OF JD TO THE RULE 37 NOTICE DTD. 15/06/10. P3: ORDER IN E.P.`90/07 OF SUB COURT, KOLLAM DTD. 25/09/10. P4: B-DIARY IN E.P.190/07 OF SUB COURT, KOLLAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. ---------------------------------------------- O.P (C) No. 466 OF 2010 ----------------------------------------------- DATED THIS THE 3rd DAY OF OCTOBER, 2011 JUDGMENT Petitioner is the judgment debtor in E.P No.190 of 2009 in O.S No.119 of 2007 of the court of the learned Principal Sub Judge, Kollam aggrieved by Ext.P3, order, issuing warrant of arrest to him on a finding that in spite of having means he has failed to pay the amount due under the decree. Learned counsel for petitioner invited my attention to Ext.P4, a copy of proceedings of the executing court on 22-09-2010 to contend that petitioner was not given opportunity to adduce evidence. It is also the contention of the learned counsel that the subject matter of the case has been compromised between petitioner and respondents in another proceeding. 2. Learned counsel for the respondent has invited attention to the true photocopy of the proceedings of the execution court dated 22-09-2011 where, it stated that respondent is present, proof affidavit is filed, he was examined as PW1 and petitioner had no evidence. 3. Since petitioner has not got an opportunity to adduce evidence I am inclined to grant petitioner an opportunity to urge O.P (C) No.466/2010 -2- his contentions before the Executing court. Resultantly this Original Petition is allowed, Ext.P3 order is set aside and E.P No.190 of 2009 is remitted to the learned Principal Sub Judge, Kollam for decision after giving petitioner opportunity to adduce evidence in support of his contentions. Respondent is permitted to withdraw the sum of Rs.50,000/- (Rupees Fifty thousand only) if any deposited by the petitioner pursuant to the order of this Court on 28-10-2010. Sd/- THOMAS P. JOSEPH JUDGE AMG True copy P.A to Judge