IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 OP(C).No. 829 of 2010() ----------------------- EP NO.441/2008 IN OS.361/2007 of PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM .................... PETITIONER ------------------------------ D.PRABHAKARAN, S/O.DAVEED, AGED 56 YEARS RESIDING AT .PRABHATH BHAVAN, PUTHUKULANGARA MURI, UZHAMALLAKKAL VILLAGE, NEDUMANGAD, BY ADV. SRI.MANOJ R. NAIR SMT.SUSAN MATHEW SMT.T.J.MARIA GORETTI SRI.G.VENUGOPAL RESPONDENT(S): --------------- PUSHPARAJA S.@ KUTTAPPAN S/O.NESSYYAN NADAR, THANNICHANKUZHI, GIGIN HOUSE,KANNIYOD MURI, PERUMKULAM, NEDUMANGAD TALUK, THIRUVANANTHAPURAM THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.829 of 2010 -------------------------------------- Dated this the 23rd day of November, 2010. JUDGMENT Petitioner is the judgment debtor in E.P.No.441 of 2008 in O.S.No.361 of 2007 of the court of learned Principal Munsiff, Thiruvananthapuram. Respondent obtained a money decree against petitioner and sought personal execution. Since petitioner remained absent in the execution proceeding, based on Ext.P1(a) affidavit of the respondent executing court found means and ordered warrant of arrest against petitioner. Petitioner filed Ext.P4, application to set aside the exparte order against him in execution and Ext.P4(a), application to condone the delay. Petitioner also filed Ext.P4(b), application stating that the decree amount may be realised from his salary. Petitioner claimed that in the meantime he had made certain payments to the respondent. On 31.08.2010 executing court passed Ext.P5, order which is a consent order as per which petitioner was permitted to pay the decree amount in monthly installments at the rate of Rs.10,000/- beginning from September (2010) and making it clear that the amount shall be paid on or before the 8th of each month. It was also directed that in the event of default of two consecutive installments, respondent could recover the amount in lump. In the meantime based on a letter dated 07.10.2010 from the learned Principal Munsiff, Thiruvananthapuram, the Government issued a memo dated 12.10.2010 directing that petitioner is relieved of his duties in the Administrative Secretariat with immediate effect to facilitate his arrest as per direction of the Principal Munsiff in in the order dated OP(C) No.829/2010 2 08.09.2010 in E.P.No.441 of 2008. Learned counsel submits that proceedings are vitiated since petitioner has been permitted to pay the amount in installments vide Ext.P5, order. 2. If challenge is to the memo dated 12.10.2010 issued by the Government it could not be under Article 227 of the Constitution. Petitioner has to challenge that memo independently under Article 226 of the Constitution if petitioner is entitled to that course otherwise. It is open to the petitioner to move the executing court for stay of the order issuing warrant of arrest to him in view of Ext.P5, order which permitted petitioner to pay the amount in installments and since issue of warrant of arrest arises only when the condition imposed on petitioner vide Ext.P5, order is not complied. Hence leaving petitioner to appropriate remedy as above stated, this petition is closed. THOMAS P.JOSEPH, Judge. cks