IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 WP(C).No. 35059 of 2009(O) -------------------------- OS.1503/2006 of PRL.MUNSIFF COURT.,IRINJALAKUDA .................... PETITIONER/JUDGEMENT DEBTOR No.4: ------------------------------- VELAYUDHAN, S/O.PALAKKAL KOOTTAN, ALOOOR VILLAGE AND DESOM, THRISSUR DISTRICT. BY ADV. SRI.T.N.MANOJ RESPONDENT/DECREE HOLDER: ---------------------------- DHANAMITHRA KURIES PVT. (LTD.), IRINJALAKUDA, REP. BY THE MANAGING DIRECTOR, SHAJ JOSE. ADV. SRI.JIJO PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 35059 of 2009 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : PETITION FILED TO RELEASE THE PETITIONER. EXHIBIT P2 : ORDER DTD. 13.11.2009 OF THE MUNSIFF COURT AT IRINJALAKKUDA EXHIBIT P3 : OBJECTIONS FILED TO NOTICE UNDER RULE 37 OF ORDER XXI RESPONDENTS' EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.35059 of 2009 --------------------------------------- Dated this 17th day of August, 2010 JUDGMENT Judgment debtor No.4, in E.P.No.1579 of 2008 in O.S.No.1503 of 2006 of the court of learned Principal Munsiff, Irinjalakkuda is the petitioner before me challenging order dated 13-11-2009 on E.A.No.1663 of 2009. Respondent/decree holder wanted to proceed against petitioner personally for realisation of amount due under the decree. Warrant of arrest was issued to the petitioner (obviously under Order XXI Rule 37(2) of the Code of Civil Procedure (for short, “the Code”) and when petitioner was arrested and brought before court, he paid Rs. 20,000/- towards the amount due under the decree. He requested three weeks time to pay the balance amount. He was released on furnishing security of Rs.20,000/- for making full payment on 07- 12-2009. That order is under challenge. Learned counsel for petitioner contends that direction for payment of the amount has been passed on an application made by respondent for personal execution without conducting any enquiry as to the means of petitioner, not to say about any finding in that regard and hence the order is illegal. Learned counsel for respondent contended W.P.C.No.35059 of 2009 : 2 : that the sum of Rs.20,000/- deposited by petitioner as security may be permitted to be withdrawn by the respondent and that petitioner could be given some time to pay the balance amount. 2. When pursuant to a notice issued under Order XXI of Rule 37(1) of the Code judgment debtor does not appear, it is open to the executing court to issue a warrant for his arrest under Rule 37(2) of the said order and going by Rule 40 when the judgment debtor appears pursuant to a notice under Rule 37 or is brought before the court (pursuant to the warrant of arrest) executing court has to conduct an enquiry regarding his means. It is only finding that in spite of having means judgment debtor has neglected or refused to pay the amount that executing court could issue warrant against him. In the present case it is not disputed that there is any finding regarding means nor any order for issue of warrant of arrest but the impugned order directs full payment of the balance amount. That order as so far is made without finding means cannot be sustained and is liable to set aside. 3. Having regard to the facts and circumstances of the case I direct petitioner to deposit/pay to the respondent against proper receipt and certified in the executing court as provided W.P.C.No.35059 of 2009 : 3 : under law @ Rs.10,000/- (Rupees Ten Thousand Only) within one month from this day and continue to deposit/pay accordingly, @ Rs.3,500/- (Rupees Three Thousand Five Hundred Only) per month beginning from 01-10-2010 onwards until executing court conducted enquiry regarding means of petitioner if any and passed appropriate orders. Resultantly this writ petition is allowed in the following lines: (i) Ext.P2, order directing petitioner to pay the entire balance amount is set aside. (ii) It is directed that the sum of Rs.20,000/- deposited (if any ) by the petitioner in the executing court as security can be withdrawn by the respondent and adjusted towards amount payable under the decree. (iii) Petitioner shall within one month from this day deposit/pay as aforesaid to the respondent Rs.10,000/- (Rupees Ten Thousand Only) towards the amount payable under the decree. (iv) Petitioner shall until the executing court conducted enquiry and passed orders regarding means continue to deposit @ Rs.3,500/- (Rupees Three Thousand and Five Hundred Only) per month beginning from 01-10-2010 onwards. Such deposit/payment shall be before the 5th of the month concerned. W.P.C.No.35059 of 2009 : 4 : (v) It will be open to the executing court, after hearing counsel on both sides to permit petitioner to pay the amount in installments while considering means of petitioner, executing court shall not take into account deposit/payment being made by petitioner as ordered by this court or deposit already made by the petitioner. (THOMAS P JOSEPH, JUDGE) Sbna/-