IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 CRP.No. 2326 of 2002() ---------------------- OS.431/1997 of MUNSIFF'S COURT, PUNALUR .................... PETITIONER: 2ND JUDGMENT/DEBTOR/2ND DEFENDANT: -------------------------------------------------------------------------------------- RAGHU K., S/O. KUNJU PILLAI, GOKULAM, THOLIKODE, PUNALUR. BY ADV. SRI.M.V.THAMBAN RESPONDENTS 1 & 2/1ST DECREE HOLDER/PLAINTIFF: RESPONDENTS 3 & 4/JUDGMENT DEBTORS 1 & 3/DEFENDANTS 1&3: ------------------------------------------------------------------------------------------------------- 1. HASHIM, SABU COTTAGE, TOWN HALL, PUNALUR P.O., PATHANAPURAM TALUK, REPRESENTED BY HIS BEST FRIEND THE 3RD RESPONDENT. 2. ABDUL MAJEED, SABU COTTAGE, TOWN HALL, PUNALUR P.O., PATHANAPURAM TALUK, REPRESENTED BY HIS BEST FRIEND THE 3RD RESPONDENT. 3. BOBAN, JAYAVILASAM VEEDU, PUNALUR P.O., PATHANAPURAM TALUK. 4. M/S. KANKARIA FINANCIERS, CHELLANI PLAZA, NO.30, VEERAPPAN STREET, 1ST FLOOR, SOKARPET, CHENNAI. BY ADV. SRI.P.R.MILTON - R1 & R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON C.M.P.NO.5785/2002 IN C.R.P.NO.2326/2002 DISMISSED 20/08/2008 SD/- M.SASIDHARAN NAMBIAR,JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ C.R.P.NO. 2326 OF 2002 ------------------------------------------ Dated this the 20th day of August, 2008 O R D E R Petitioner is the second judgment debtor in O.S. 431 of 1997. Respondents 1 and 2 are the decree holders. On the failure to pay the decree debt, E.P. 49 of 2001 was filed before Munsiff Court, Punalur. Decree holders sought arrest and detention of the petitioner contending that he has sufficient means, but neglected to pay the decree debt. Executing Court as per order dated 25.9.2002, finding that petitioner has sufficient means as he is running a workshop and willfully neglected to pay the decree debt, ordered his arrest. Revision petition is filed under Section 115 of Code of Civil Procedure challenging the order. The ground taken in the revision petition is that the decree is exparte and he did not get summons in the suit and subsequently he filed a petition to set aside the exparte decree and it is pending and when it is pending executing court was not justified in granting an order of arrest. 2. Learned counsel appearing for petitioner and CRP2326/02 2 respondents 1 and 2 were heard. 3. Case of the petitioner is that his address shown in the suit is not correct and petitioner did not receive any summons and the exparte decree is therefore not binding on him and in any case when a petition is filed under Rule 13 of Order IX to set aside the exparte decree, executing court should not have directed arrest of the petitioner and therefore the order is to be quashed. 4. Learned counsel appearing for respondents 1 and 2 pointed out that B diary of the suit itself reveals that petitioner had appeared before the trial Court and he did not file a written statement and was set exparte after three years and in any case no petition is pending under Rule 13 of Order IX of Code of Civil Procedure and as petitioner has sufficient means, there is no illegality or irregularity in the order of arrest and therefore revision is to be dismissed. 5. Even if the decree sought to be executed is an exparte decree it is binding on the petitioner. He cannot be heard to contend that the decree cannot be executed as it is an exparte decree. Petitioner has no case he has no sufficient means to pay the decree debt. The only ground taken is that a CRP2326/02 3 petition is pending under Rule 13 of Order IX to set aside the exparte decree. That fact is disputed by respondents 1 and 2. Even if such a petition was filed, it would not be pending for the last six years as the CRP was filed in 2002. Even if any petition is pending,it is for the petitioner to seek an order of stay from that Court. As there is no order of stay, executing court was perfectly justified in directing arrest of the petitioner. I do not find any illegality or irregularity in the impugned order. Revision petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-