IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 OP(C).No. 2239 of 2011(O) ------------------------- OS.1481/2002 of PRINCIPAL MUNSIFF'S COURT,THIRUVANANTHAPURAM .................... PETITIONER: ----------------------- VIJAYAKUMAR,AGED 41 YEARS, S/O.VASUDEVAN,NELIYOORKONAM,GOKULAM, VATTIYOORKAVU PO, THIRUVANANTHAPURAM. BY ADVS. SRI.A.BALAGOPALAN, SRI.A.RAJAGOPALAN, SRI.M.N.MANMADAN, SRI.M.S.IMTHIYAZ AHAMMED, SRI.K.SANEESH KUMAR. RESPONDENT(S): ---------------------------- SREEKUMAR,AGED 50 YEARS, S/O.BHASKARA KURUP,RESIDING AT TC 6/2278(1), SRUTHILAYAM,VALIYAVILA,THIRUVANANTHAPURAM. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2239/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE DECREE PASSED IN O.S.NO.1481/2002 DTD. 21/03/2003 BY THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. P2: COPY OF THE MEMO EVIDENCING RECEIPT OF RS.14,000/- ON 2.2.2007. P3: COPY OF THE MEMO EVIDENCING RECEIPT OF RS.11,000/- BY THE COUNSEL FOR THE DECREE HOLDER. P4: COPY OF E.P.NO.275/2010 IN O.S.NO.1481/2002 DTD. 12/07/2010. P5: COPY OF THE RULE 37 NOTICE ISSUED IN EXHIBIT P4 EXECUTION PETITION AND THE REPORT OF THE PROCESS SERVER. P6: COPY OF THE ORDER PASSED BY THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM IN E.P.NO.275/2010 IN O.S.NO.1481/2002 DTD. 18/06/2011 ORDERING WARRANT TO THE PETITIONER. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2239 of 2011 --------------------------------------- Dated this 13th day of July, 2011 JUDGMENT Judgment debtor in E.P.No.275 of 2010 in O.S.No.1481 of 2002 of the Court of learned Principal Munsiff, Thiruvananthapuram challenges Ext.P6, order dated June 18, 2011 issuing warrant of arrest to the petitioner under Rule 38 of Order XXI of the Code of Civil Procedure (for short, "the Code). 2. Respondent has obtained a decree against petitioner for payment of money and filed Ext.P4, E.P.No.275 of 2010. In the execution proceeding Ext.P5, notice under Rule 37 of Order XXI of the Code was issued to the petitioner. It would appear the from endorsement of process server on Ext.P5 that since petitioner was not found in the house where he is allegedly residing, notice was attempted to be served on his wife who refused to accept the notice and thereon notice was affixed on the outer door of the said building. Based on that report executing court issued Ext.P6, order stating that notice under Rule.37 is affixed, petitioner remained absent, he is set ex parte and thereon warrant under Rule.38 of Order XXI of the Code was issued. Now the case is posted on 27.07.2011 for return of O.P(C).No.2239 of 2011 -: 2 :- warrant. 3. Learned counsel has submitted that there was no scope for issuing notice under Rule 37 of Order XXI of the Code as there was no prayer in Ext.P4, execution petition for personal execution against petitioner and hence the executing court was not correct even in issuing notice under Rule 37 of Order XXI of the Code. It is also contended that there was no proper service of notice as required under Rule 15 of Order V of the Code in that it was not a case where there was no possibility of petitioner being found in his house within a reasonable time so that, attempt could have been made to serve notice on any adult member of the family. In the circumstance, it is contended that service of notice by affixture under Rule 15 of Order V of the Code is not proper. The further contention is that at any rate, no enquiry was conducted regarding means of petitioner before warrant of arrest was issued to the petitioner. 4. I have gone through Ext.P4, execution petition. It is true that there is no request in that petition for personal execution against petitioner. But, I must bearing in mind that the purport of warrant issued under Rule 38 of Order XXI of the Code is only to procure presence of petitioner in the executing court to answer the notice under Rule 37 of Order XXI of the Code. At O.P(C).No.2239 of 2011 -: 3 :- that stage, the Court does not conduct an eqnuiry regarding means of petitioner. The scheme of Rule 37 is that the executing court has to issue notice to the judgment debtor under sub rule (i) and if there is disobeyance to that notice and the judgment debtor does not appear, warrant of arrest under sub rule (ii) will follow. Rule 38 of Order XXI of the Code only deals with the manner of execution of warrant of arrest. The provisions under which enquiry regarding means is to be conducted is Rule 40 of Order XXI of the Code. That provision says that when judgment debtor appears pursuant to a notice or, is brought under a warrant of arrest issued under Rule 37(ii), the Court shall record evidence of the decree holder and give judgment debtor opportunity to show cause why he shall not be committed to the Civil Prison. Therefore enquiry regarding means comes under Rule 40 of Order XXI. This has been highlighted in the decision of this Court in Raju Vs. Indian Overseas Bank (2006(3) KLT 387). There, learned Judge has held that even if judgment debtor is brought on warrant under Rule 37(ii) of Order XXI of the Code the executing court cannot dispense with the enquiry regarding means of the judgment debtor. In the circumstance, the procedure adopted by the executing court is only to procure presence of petitioner before the executing court to answer the O.P(C).No.2239 of 2011 -: 4 :- prayer for arrest and detention of petitioner in the civil prison for non payment of the decree amount in spite of having the means. In other words, petitioner when he appears before the executing court or, is brought before that Court pursuant to the warrant issued under Rule 37(ii) (to be executed in the manner referred to in Rule 38) has the opportunity of showing cause why he shall not be committed to the civil prison. It is then open to the petitioner to contend that there is no prayer in Ext.P4, execution petition for personal execution and that he has no means as claimed by the respondent/decree holder. 5. Learned counsel has submitted that petitioner is prepared to appear in the executing court on 27.07.2011 and in the circumstance, warrant of arrest may be kept in abeyance. Having regard to the submission made I am inclined to allow that request. 6. It is also submitted by learned counsel that petitioner is prepared to discharge the decree debt if he is given installment facility. I make it clear that it is open to the petitioner to make that request before the executing court but, that offer shall not be treated as indicating means of petitioner in case executing court has to conduct an enquiry regarding means of petitioner. O.P(C).No.2239 of 2011 -: 5 :- Resultantly this original petition is disposed of in the following lines: (i) Petitioner shall appear before the executing court on 27.07.2011 and answer the notice under Rule 37 of Order XXI of the Code. Warrant of arrest issued to the petitioner will stand in abeyance until 27.07.2011. (ii) It is made clear that it is open to the petitioner to raise his plea regarding absence of prayer for personal execution in Ext.P4, execution petition and want of means under Rule 40 of Order XXI of the Code. (iii) On appearance of petitioner before executing court, it is open to the petitioner to request that he be released on kaichit as provided in Rule 40 of Order XXI of the Code and if any such request is made, the executing court shall consider that and pass appropriate orders. (THOMAS P JOSEPH, JUDGE) Sbna/-