IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 WP(C).No. 16464 of 2009(O) -------------------------- AGAINST THE ORDER IN EP 119/2008 IN OS.500/2004 of PRL.MUNSIFF COURT, PALAKKAD .................... PETITIONER(S): ------------------------ THE FARMING TRUST OF INDIA REPRESENTED BY ITS ADMINISTRATOR AND SENIOR CO-ORDINATOR T.G.VIJAYAN, S/O.GOPALAN, AGED 43 YEARS, KOOTTUPATHA, MARUTHAROAD AMSOM, PALAKKAD. BY ADV. MR.JACOB SEBASTIAN RESPONDENT(S): --------------------------- P.V.PHILIP, S/O.VARGHESE, CHOLODKALAM, C.N.PURAM, PUTHUR AMSOM, PALAKKAD. BY ADVS. MR.D.KRISHNA PRASAD, SMT.O.K.SANTHA, SMT.P.L.MARY TREASA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.16464/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF E.A.NO.119/2008 IN E.P.NO.38/2007. P2: COPY OF THE COUNTER STATEMENT FILED BY THE JUDGMENT DEBTOR TO E.A.672/2008. P3: COPY OF THE ORDER DTD. 07/04/2009 IN E.P.NO.119/2008 IN O.S.NO. 500/2004 OF THE COURT OF THE MUNSIFF OF PALAKKAD. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.16464 OF 2009 -------------------------- Dated this the 28th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Set aside Ext.P3 order by issuing any appropriate writ, order or direction. ii) Issue such other writ, order or direction, which are deemed fit and proper on the facts and circumstances of the case and in the interest of justice. 2. Petitioner is the judgment debtor in E.P No.119/2008 in O.S No.500/2004 on the file of the Munsiff Court, Palakkad. Suit was one for W.P.(C).No.16464 OF 2009 Page numbers money. The respondent / decree holder, during trial had filed an application under Order 38 Rule 5 of the Code of Civil Procedure for interim attachment of a motor vehicle belonging to the petitioner / defendant in the suit. The defendant entering appearance before the court and requested the vehicle to be treated as the security with undertaking that it will not be alienated. After passing of the decree, when steps were taken for arrest of the petitioner, he appeared before the court. In the enquiry, it was revealed that the vehicle had been alienated. The learned Munsiff thereupon passed Ext.P3 order after issuing arrest warrant against the petitioner / judgment debtor. Propriety and correctness of Ext.P3 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. W.P.(C).No.16464 OF 2009 Page numbers 3. I heard the counsel on both sides. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P3 order, I find the procedure followed by the court below directing issue of an arrest warrant against the petitioner for violating the alleged undertaking given by him without affording him an opportunity for explanation cannot be sustained under law. Some observations made in Ext.P3 order that the conduct of the judgment debtor was nothing short of contempt, that too without hearing him cannot be approved. Whatever be the contumacious conduct of the judgment debtor in disposing of the vehicle violating the order of undertaking given a court of law, the court cannot reach in conclusion or enter a finding without providing him an opportunity to explain and also an opportunity of hearing. Further more, the court below cannot also enter a finding that the violation of the undertaking is a contempt. W.P.(C).No.16464 OF 2009 Page numbers Contempt proceedings are to be taken only after an enquiry and the subordinate courts, after such enquiry, has to address this court for taking action under the Contempt of Courts Act if cause thereor is made out. Whatever that be, at the time of hearing the writ petition, the counsel on both sides have reached a consensus by which the petitioner agreed to pay the decree amount due in two instalments. Petitioner has agreed to pay a sum of Rs.25,000/- within a period of 45 days from the date of the judgment and the balance amount outstanding on the decree with expenses in execution within a further period of 45 days. Submission made by the counsel for the petitioner as above is recorded. In the event of default in payment of the decree debt as agreed to and represented by the learned counsel for the petitioner, it is open to the decree holder to proceed for realisation of the entire decree debt in the execution proceedings as provided by law. W.P.(C).No.16464 OF 2009 Page numbers Ext.P3 order is set aside reserving the right of the decree holder to take appropriate steps under Order 21 Rule 37 of the Code of Civil Procedure in the event of default of petitioner to pay the decree debt within the time limit as agreed and fixed as above. In case the petitioner commits default in paying the decree debt as agreed upon, I make it clear that he will be liable to be proceeded for violating the undertaking given, as provided by law, apart from the proceedings for realisation of the decree debt. 4. Subject to the observations made, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv