IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 WP(C).No. 21633 of 2008(A) -------------------------- AGAINST THE ORDER DATED 23/05/2008 IN EP 297/06 IN OPMV.169/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... PETITIONER: ------------ O.T. JOSE, S/O. THOMAS, OLAKKENGIL HOUSE, POONKUNNAM, THRISSUR. BY ADV. SRI.DILIP J. AKKARA RESPONDENTS: ------------- JOY, S/O. LONAKUTTY, KOLLANNUR KUTTUKARAN HOUSE, MANALOOR, THRISSUR. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.21633 of 2008 ------------------------------- Dated this the 1st September, 2008. J U D G M E N T This petition is filed under Article 227 of the Constitution of India challenging Exts.P2 and P3 proceedings contending that under Ext.P1 petition, the award passed in M.V. (O.P.) No.169 of 1999 is sought to be executed by proceeding against the property by sale and subsequently Ext.P2 petition is filed, for realisation of the amount by arrest and detention, and Ext.P3 order, an order of arrest is passed, and, the proceedings are illegal and are to be quashed. The contention is that simultaneous execution is not permissible. 2. I cannot agree with the submission. It is the option of the decree holder whether the decree for realisation of the amount is to be executed by attachment and sale of the properties, or by arrest and detention. There is no prohibition for simultaneously proceeding against the property and also W.P.(C) No.21633 of 2008 2 against the person. In such circumstances, on that ground, the proceedings cannot be challenged. Under Ext.P3 order, Motor Accidents Claims Tribunal directed arrest of the petitioner, as petitioner did not appear and raised a plea of 'no means'. When rule 37 notice is received by the petitioner, it is up to him to appear and contend that he cannot be arrested, as provided under Section 51 of Code of Civil Procedure. As petitioner did not appear, I do not find any illegality or irregularity in Ext.P3 order. Still petitioner is entitled to raise a plea of 'no means' or any other ground available to him, if he is arrested and produced before the execution court, as provided under Rule 40 of Order XXI of Code of Civil Procedure. At that stage, Tribunal shall consider the plea, if raised. 3. Learned counsel appearing for the petitioner submitted that petitioner has filed a petition to set aside the ex parte order, and it is not disposed of. If the petition is not disposed of, Motor Accidents Claims Tribunal is directed to W.P.(C) No.21633 of 2008 3 dispose the same expeditiously before executing the order of arrest. M.SASIDHARAN NAMBIAR, JUDGE nj.