IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 WP(C).No. 34893 of 2009(O) -------------------------- AGAINST THE ORDER IN EP.173/08 IN OS.1620/2005 of PRINCIPAL MUNSIFF COURT,IRINJALAKUDA .................... PETITIONER(S): --------------- POULOSE, S/O. KUNNATHPARAMBIL HOUSE, KALLAMKUNNU DESOM, VALOOKKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR. BY ADV. SRI.RAJESH CHAKYAT RESPONDENT(S): --------------- JAI SUVARNA KURIES PVT. LTD., IRINJALAKUDA VILLAGE, DESOM, MUKUNDAPURAM TALUK, REP. BY MANAGING DIRECTOR, VASUDEVAN. ADV. SRI.BLAZE K.JOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.34893/2009 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 A TRUE COPY OF THE EXECUTION PETITION IN E.P. NO.173/2008 DATED 13.2.2008 EXT.P2 A TRUE COPY OF THE ORDER EP NO.173/2008 DATED 13.11.2009 EXT.P3 A TRUE COPY OF THE RECEIPT DATED 13.11.2009 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.34893 of 2009 -------------------------------------- Dated this the 31st day of May, 2010. JUDGMENT Writ petitioner/judgment debtor challenges Ext.P2, order of learned Principal Munsiff, Irinjalakkuda in E.P.No.173 of 2008 in O.S.No.1620 of 2005. As per that order, according to the petitioner, even without conducting an equiry into means though petitioner had pleaded no means, he was arrested and released on condition of depositing Rs.10,000/- and he has been directed to pay the balance amount before 07.12.2009. That according to the petitioner is illegal. Learned counsel for respondent would contend that in the Writ Petition there is an offer on the part of the petitioner to pay the balance amount in installments. 2. Under Section the Code of 51C of Civil Procedure (for short, “the Code”), a warrant can be issued only when it is found that a judgment debtor having sufficient means has neglected or refused to pay the amount. Order 21 Rules 37 and 40 of the Code prescribes the procedures for issue of warrant and enquiry regarding means. Under Sub-rule (1) of Rule 37 of Order 21, the court has to issue notice to the judgment debtor calling upon him to show cause why he should not be committed to the civil prison. Under Sub-rule (2) of Rule 37 of Order 21 of the Code where appearance is not made in obedience to the notice, the court shall if the decree-holder so requires issue a warrant for the arrest of the judgment debtor. Under Rule 40 of Order 21 of the Code, when the judgment debtor appears (pursuant to the notice under Sub-rule (1) of Rule 37) WP(C) No.34893/2009 2 or is brought (pursuant to the warrant of arrest issued under Rule 37(2)) the court has to conduct an enquiry as to means of the judgment debtor. Burden of proving means is on the decree holder though, he is not bound to give all details of the income of the judgment debtor. When some evidence is adduced it is for the judgment debtor to prove that he has no sufficient means. In this case pursuant to the warrant of arrest issued (under Rule 37(2) of Order 21) when the petitioner was arrested and brought before court, no enquiry regarding his means was conducted. Mere fact that in the Writ Petition petitioner has offered to pay the amount in installments is not by itself proof of means of petitioner. As such Ext.P2, in so far no enquiry regarding means was conducted cannot be sustained, is liable to be set aside and I do so. Resultantly this Writ Petition is allowed. Ext.P2, order is set aside and the matter is remitted to the executing court to conduct enquiry as provided under Rule 40 of Order 21 of the Code. Respondent is permitted to withdraw whatever amount petitioner has deposited in the executing court towards the amount due under the decree. I.A.No.6687 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks