IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 OP(C).No. 3768 of 2011(O) -------------------------------- OS.175/2007 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER --------------- D.SASIDHARAN, S/O. DAMODARAN, ASWATHI BHAVAN, KOTTIYAM P.O., KOLLAM DISTRICT. BY ADVS. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR SRI.K.S.PRAVEEN RESPONDENT(S): -------------------- CANARA BANK, THATTAMALA BRANCH, KOLLAM, REPRESENTED BY ITS MANAGER, PIN-691 020. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 3768/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE E.P. NO.483/2010 IN O.S. NO.175/2007 OF THE PRINCIPAL SUB COURT, KOLLAM. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3768 of 2011 --------------------------------------- Dated this 21st day of November, 2011 JUDGMENT Respondent appears through counsel. 2. Petitioner suffered an ex parte decree for payment of money to the respondent as early as on 13.03.2009 in O.S.No.175 of 2007 of the Court of learned Principal Sub Judge, Kollam filed by the respondent on 04.04.2007. Respondent put the decree in execution and as the learned counsel submits, the salary of petitioner who is working as a Lecturer in a first graded College was attached. Respondent sought personal execution against petitioner and on a finding that petitioner has means, warrant of arrest was issued to him. In the meantime, petitioner has filed application to set aside the ex parte decree claiming that the ex parte decree was passed against him without service of summons and that he was unaware of the proceedings in the Court. That application was dismissed for default. That was followed by petitioner filing I.A.No.2348 of 2011 for its restoration which is pending decision. The prayer in this petition is to stay operation of warrant of arrest issued to the petitioner in the meantime. 3. Learned counsel for respondent has opposed the request. It is stated that there is no reason to set aside the ex O.P(C).No.3768 of 2011 -: 2 :- parte decree and that attempt of petitioner is to delay the execution as is evident from the fact that I.A.No.5140 of 2010 was dismissed for default and I.A.No.2348 of 2011 was filed to restore I.A.No.5140 of 2010. 4. Having regard to the contentions raised, I am inclined to think that warrant of arrest issued to the petitioner would stand in abeyance for some time so that in the meantime it is open to the petitioner to discharge the decree amount (which shall be subject to the decision of the trial court on the request to set aside the ex parte decree). Resultantly this original petition is disposed of as follows: (i) It is directed that warrant of arrest issued to the petitioner will stand in abeyance for a period of forty five (45) days from this day on condition that petitioner deposits in the executing court the entire amount due under the decree within forty (40) days from this day (in the executing court). (ii) It is made clear that the above direction is subject to the result of the application to set ade the ex parte decree. It is also made clear that this order will not stand in the way of respondent proceeding with attachment of salary of petitioner as provided under law. (THOMAS P. JOSEPH, JUDGE) Sbna/-