IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 OP(C).No. 1716 of 2011(O) ------------------------- AGAINST THE ORDER DATED 26/02/2011 IN E.P.220/2008 IN OS.720/2001 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER: ---------------------- T.K.NOOR MUHAMMED, S/O.KHADER HUSSAIN, THEKKUMURIYIL, NALLEPALLY VILLAGE, CHITTUR TALUK, PALAKKAD. BY ADVS. SRI.H.BADARUDDIN, SMT.NILA. C.V., SMT.B.SHAMEERA, SRI.T.T.SUDHEESH. RESPONDENT(S): --------------------------- 1. KALIMUTHU, S/O.KRISHNASWAMI GOUNDER, RESIDING AT 5TH MILE, K.K.PATHI P.O., CHITTUR TALUK, PALAKKAD-678 101. 2. P.K.SAINUDHEEN, S/O.KHADER HUSSAIN, THEKKUMURIYIL, NALLEPALLY P.O., CHITTUR TALUK, PALAKKAD-678 553. R1 BY ADV. SRI.RAJESH SIVARAMANKUTTY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.1716/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER DTD. 22/01/2010 IN O.S.72/2001. P2: COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN E.P.220/2008 IN O.S.72/2001. P3: COPY OF DELAY CONDONATION PETITION. P4: COPY OF THE ORDER DTD. 12/01/2011 IN E.P.220/2008. P5: COPY OF ORDER DTD. 26/02/2011. P6: COPY OF ORDER DTD. 26/2/2011 ISSUED BY THE COURT BELOW FOR ISSUING FRESH WARRANT AGAINST PETITIONER. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1716 of 2011 -------------------------------------- Dated this the 11th day of July, 2011. JUDGMENT In view of the order I propose to pass, notice to the first respondent is dispensed with. 2. Petitioner is second judgment debtor in E.P.No.220 of 2008 in O.S.No.72 of 2001 of the court of learned Principal Sub Judge, Palakkad. First respondent has obtained a decree for recovery of money against petitioner and second respondent and he sought personal execution against petitioner for recovery of the amount. Ext.P6, order dated 26.02.2011 issuing warrant to the petitioner is under challenge in this proceeding on the ground that the plea of petitioner regarding means was not adjudicated by the executing court. Learned counsel submitted that the executing court ought to have adjudicated the question and at any rate, given petitioner opportunity to pay the amount in installments. 3. The executing court on 13.01.2011 heard petitioner and first respondent (obviously on the question of means and issue of warrant of arrest) and posted the case for orders on 22.01.2011. That day, executing court passed Ext.P1, order observing that in spite of notice under Rule 37 of Order 21 of the Code of Civil Procedure (for short, “the Code”) petitioner has not appeared and hence warrant of arrest was issued against him under Rule 37(2) of Order 21 of the Code. Petitioner appeared and filed E.A.No.431 of 2010 to recall OP(C)No.1716/2011 2 warrant. Petitioner paid `1,39,200/- and the balance amount due was Rupees three lakhs. In view of payment warrant was recalled. Petitioner did not file any objection to the notice under Rule 37 of Order 21 of the Code and there was also no case for him that he had no means to pay the amount. In otherwords, affidavit of the first respondent that petitioner has sufficient means stood uncontroverted. Acting on that affidavit executing court issued warrant of arrest to the petitioner directing him to be detained in the civil prison for three months or till the amount is paid whichever is earlier. The case was posted on 26.02.2011 on which day executing court passed Ext.P5, order dismissing E.A.No.153 of 2011 filed by petitioner to recall warrant. Executing court observed that there is no reason to withdraw the warrant. Certain payments were also made by petitioner. Executing court on 26.02.2011 passed Ext.P6, order issuing warrant of arrest to the petitioner. 4. The contention of petitioner is that his objection regarding means was not considered. Ext.P2 is the copy of undated objection to the notice under Rule 37 of Order 21 of the Code. But, it is seen from Ext.P3, petition for condonation of delay in filing the objection it was filed on or after 11.04.2011, ie., much after the executing court issued warrant of arrest based on the finding regarding means. In the circumstances there is no scope for accepting the objection preferred by petitioner regarding his means. OP(C)No.1716/2011 3 5. So far as the request for installment payment is concerned, it is seen from the orders under challenge that certain amount is already paid by petitioner. Having regard to these circumstances I am inclined to permit petitioner to request the executing court for for permission to pay the amount in installments but that shall be subject to condition. Resultantly this Original Petition is disposed of in the following lines: i. Warrant of arrest issued to the petitioner in E.P.No.220 of 2008 in O.S.No.72 of 2001 of the court of learned Principal Sub Judge, Palakkad will stand in abeyance for a period of fortyfive (45) days from this day on condition that petitioner paid Rs.75,000/- (Rupees Seventyfive thousand only) to the first respondent within a month from this day. ii. Petitioner, notwithstanding the earlier orders passed by the executing court is permitted to request that court for permission to pay the balance amount due under the decree in installments and if any such request is made, the executing court shall consider that request and pass appropriate orders ofcourse, after hearing the first respondent/decree holder also and having regard to the fact that a portion of the amount is already paid. THOMAS P.JOSEPH, Judge. cks