IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 W.P(C).No. 25816 of 2008(W) -------------------------- O.S.110/2006 OF MUNSIFF MAGISTRATE COURT,PATTAMBI. .................... PETITIONER: ------------ A.T. SASIDHARAN, S/O. KARAPPAN, AGED 44 YEARS, SASI NIVAS, MARUTHUR AMSOM DESOM,MARATHUR POST, PATTAMBI, OTTAPALAM TALUK. BY ADV. SRI.E.R.VENKATESWARAN SRI.R.SREEHARI RESPONDENT: ------------- SIVAKARAN BATTATHIRIPAD, S/O.LATE RAMAN BHATTATHIRIPAD, KANJOOR MANA, MUTHUTHALA AMSOM, KOTTUMUNDA DESOM, OTTAPALAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 25816 OF 2008 ............................................ DATED THIS THE 27th DAY OF AUGUST, 2008 JUDGMENT Petitioner is the judgment debtor and respondent, the decree holder in O.S.110 of 2006 on the file of Munsiff Court, Pattambi. E.P.8 of 2008 was filed for arrest and detention of petitioner for realisation of the decree debt of Rs.31,431/-. According to petitioner, he could not appear on the day when he was directed to appear by serving notice issued under Rule 37 of Order XXI of Code of Civil Procedure. Executing court passed an order for his arrest. Petitioner, thereafter filed Ext.P2 objection, contending that he has no means to pay the decree debt as he is having no property or job. Petitioner also filed applications to set aside the exparte order, to recall the warrant and also to receive the medical certificate to show that he is suffering from inter vertebral disc prolapse. Petitioner also filed E.A.169 of 2008 (Ext.P8), an application to stop the execution proceedings till other applications are heard. It was dismissed on 5.8.2008. This petition is filed under Article 227 of Constitution of India for a direction to the Munsiff to dispose the applications and for a direction to keep the order of arrest in abeyance till then. 2. Learned counsel appearing for petitioner was heard. WP(C) 25816/2008 2 3. In view of the order to be passed in this petition, it is not necessary to issue notice to respondents. 4. A notice as provided under Rule 37 of Order XXI of Code of Civil Procedure was issued to petitioner. Petitioner did not appear. It is thereafter, an order of arrest was passed which is not challenged in this petition. Petitioner filed an application under Rule 106 of Order XXI of Code of Civil Procedure to set aside the exparte order as against him along with another application to recall the arrest warrant. Petitioner also filed an application to keep the order of arrest in abeyance till the disposal of those applications, which was rejected as per the order passed in Ext.P8 application. 5. Rule 40 of Order XXI of Code of Civil Procedure mandates that even if an order is passed against the judgment debtor, on his failure to appear in answer to the notice issued under Rule 37 or the judgment debtor is brought under arrest, executing court is bound to consider whether judgment debtor could be directed to be detained in civil prison. Sub rule 1 of Rule 40 enables the judgment debtor to show cause why he should not be committed to civil prison. Similarly sub-rule 3 of Rule 40 mandates that judgment debtor could be detained in civil prison, only on satisfying the conditions provided under Section 51 of the Code and that too, after conclusion of the enquiry provided under sub rule 1. In such circumstances, even if the WP(C) 25816/2008 3 exparte order is not set aside and judgment debtor is arrested and brought before the executing court, executing court is bound to consider whether there is sufficient cause for not committing petitioner to civil prison and whether the conditions provided under Section 51 of Code of Civil Procedure are complied with. In such circumstances, when the order of arrest was passed after setting the judgment debtor exparte and applications are filed by judgment debtor to set aside the exparte order, learned Munsiff should have passed the order in those applications, must consider the question whether petitioner could be detained in prison. In such circumstances, writ petition is disposed, directing learned Munsiff to consider the applications filed to recall the warrant as well as to set aside the exparte order and to consider the question whether petitioner could be detained in prison as provided under Rule 40 of Order XXI of Code of Civil Procedure. Learned Munsiff shall not enforce the order of arrest till the decision is taken. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-