IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 WP(C).No. 1379 of 2008(L) ------------------------- OS.681/2001 of MUNSIFF COURT,CHAVAKKAD .................... PETITIONER: -------------------- DAVID @ DAVIS, S/O. KOCHUMATHU, AGED 40 YEARS, CHEERAN HOUSE, PERAKAM, CHAVAKKAD, THRISSUR DISTRICT. BY ADV. SRI.K.T.SHYAMKUMAR RESPONDENT: ----------------------- THE FINANCIAL CREDITS & CHITS COMPANY (P) LTD., P.O.CHAVAKKAD. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== W.P.(C)No.1379 OF 2008 ===================== Dated this the 11th day of January 2008 JUDGMENT 3rd judgment debtor in the case has moved this writ petition aggrieved by the order of the Munsiff's Court, Chavakkad in ordering arrest against all judgment debtors. The court below held that the judgment debtors have not filed any affidavit regarding plea of no means and as no payment is effected the execution application filed for recalling the warrant was dismissed. Ext.P3 is an A Diary extract which reads as follows: JDs are failed to file affidavit regarding the plea of no means. Hence the plea raised by the respondents not sustainable. No payment made so far. Hence issue arrest warrant against JDs 30.11.2007”. 2. On 30.11.2007 the present petitioner has moved an application to recall the warrant and he has also filed an affidavit under Order XXI Rule 41(2) C.P.C. A perusal of the said affidavit would show that he is raising the contention of no means. Even otherwise the court must be satisfied that there is means before ordering arrest. Learned counsel would submit before me that there is no prayer filed by the decree holder for filing an affidavit WP(C)1379/2008 -:2:- under Order XXI Rule 41(2) and therefore the judgment debtors have no obligation to file the same. There is some force in the said contention. The approach of the court below is not in accordance with law. Therefore the order of arrest issued against the 3rd judgment debtor is set aside and the court below is directed to consider the case of the 3rd judgment debtor after affording equal opportunity to both sides to adduce evidence in support of their respective contentions. Needless to say that till a decision is taken on the same, the 3rd judgment debtor shall not be arrested. Decree holder also be given notice before proceeding with the matter. M.N.KRISHNAN, JUDGE Cdp/-