IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 OP(C).No. 3347 of 2011(O) ---------------------------------- OS.318/2005 of MUNSIFF COURT, TIRUR ......................................................................... PETITIONER: ------------------- K.K.BALAKRISHNAN, S/O. DAMODARAN, THAYYIL KALARICKAL HOUSE, POST K.PURAM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.T.KRISHNAN UNNI (SR.) SRI.SAJU.S.A SRI.K.C.KIRAN SMT.P.A.SHEEJA RESPONDENT(S): ------------------------- PERINGOTTUKARA NAMBOODHIRI YOGA KSHEMA SABHA, ANTHIKKAD, REPRESENTED BY ITS SECRETARY, POST ANTHIKKAD, THRISSUR DISTRICT. PIN-680 641. R1 BY ADV. SRI.N.M.MADHU SMT.C.DEVIKA RANI KAIMAL THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RKM OP(C).No. 3347 of 2011(O) APPENDIX PETITIONER'S EXHIBITS : P1 : COPY OF THE E.P. 173/2010 IN O.S. NO. 318/2005 ON THE FILE OF MUNSIFF COURT, TIRUR DATED 23-7-2010. P2 : COPY OF THE E.A. 245/2011 IN E.P. 173/2010 ON THE FILE OF MUNSIFF COURT, TIRUR, DATED 02-08-2011. P3 : COPY OF THE E.A. 246/2011 IN E.P. 173/2010 ON THE FILE OF MUNSIFF COURT, TIRUR, DATED 02-08-2011. P4 : COPY OF THE ORDER DATED 06.08.2011 BY THE EXECUTING COURT IN E.A. 245/2011 IN E.P. 173/2010 IN O.S.NO.318/2008 ON THE FILE OF MUNSIFF COURT, TIRUR. P5 : COPY OF THE ORDER IN O.P.C NO. 2864/2011 DATED 29-08-2011. P6 : COPY OF THE ORDER DATED 30-09-2011 IN E.A.NO.246/2011 IN E.P. NO. 173/2011 IN O.S. NO.318/2005, MUNSIFF COURT, TIRUR. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ PA TO JUDGE RKM THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3347 of 2011 -------------------------------------- Dated this the 17th day of November, 2011. JUDGMENT The 3rd judgment debtor in E.P.No.173 of 2010 in O.S.No.318 of 2005 of the court of learned Munsiff, Tirur challenges Ext.P6, order on E.A.No.245 of 2011. 2. Respondent obtained a decree for recovery of money in O.S.No.318 of 2005 and launched execution proceedings against petitioner. It appears that though notice under Rule 37 of Order XXI of the Code of Civil Procedure was served on petitioner, he remained absent. Later, petitioner filed Ext.P2, application to recall the warrant and Ext.P3, objection to the issue of warrant. Ext.P2, application was rejected by Ext.P4, order and Ext.P3, objection was rejected by Ext.P6, order. 3. It is contended by the learned counsel for petitioner that no enquiry regarding means was conducted by the learned Munsiff. Learned counsel for respondent pointed out that petitioner has sufficient means and in spite of that, has refused to pay the amount due under the decree. 4. I called for information from the learned Munsiff through the Registrar (Judicial) as to whether any enquiry regarding means of petitioner was conducted and any finding entered. The Registrar (Judicial) on contacting OP(C)No.3347/2011 2 the Chief Ministerial Officer of the court concerned has reported that the proceeding paper of the court below does not show that any specific enquiry regarding means of the petitioner was conducted or any finding regarding means of petitioner entered by the learned Munsiff. 5. Without entering a satisfaction that the conditions stated in the proviso to Sec.51 of the Code are complied, no warrant for arrest could be issued to the judgment debtor. In that view of the matter, Ext.P6, order is liable to be set aside and I do so. Resultantly this Original Petition is allowed. Ext.P6, order is set aside. The executing court is directed to conduct enquiry regarding means of the petitioner in the light of Ext.P3, objection and enter an appropriate finding. THOMAS P.JOSEPH, Judge. cks