Sadanandan vs Aishwarya Trust

Thomas P. Joseph, J.—This Writ Petition is in challenge of Ext.P2, order issuing warrant of arrest against petitioner-judgment debtor in E.P. No. 18 of 2007 in O.S. No. 73 of 2000 of the court of learned Sub Judge, Cherthala. Respondent-decree holder obtained a decree for payment of money against petitioner and put the decree in execution. Respondent wanted personal execution against the petitioner. Respondent filed proof affidavit on 24.06.2010. An Advocate Commissioner was appointed to cross-examine the respondent and petitioner was directed to pay Rs. 500/- as batta. Commissioner reported that petitioner has not cross-examined respondent-decree holder. Petitioner also did not adduce any evidence. Relying on the uncontroverted proof affidavit of respondent and Exts.A1 to A4 executing court found that petitioner has means to discharge the decree debt but neglected or refused to pay the amount and accordingly Ext.P2, order was issued. Petitioner has now been taken to custody and is undergoing detention in the civil prison. Learned Counsel contended that petitioner was not given opportunity to lead evidence. It is also stated that petitioner was not released as provided under Order XXI Rule 40(3) of the Code of Civil Procedure.

It is on the uncontroverted evidence of respondent that means was found against petitioner. In the circumstances I do not find reason to interfere with the order under challenge. At this stage learned Counsel for requested that petitioner may be granted some time to pay the amount due under the decree. It is stated that on 07.07.2010 petitioner has paid Rs. 50,000/- (Rupees Fifty thousand only) to the respondent.

Having regard to the circumstances stated I am inclined to grant petitioner three months'' time from this day to discharge the amount due under the decree but subject to conditions.

Resultantly, this Writ Petition is disposed of in the following lines:

(i) Petitioner is granted three months'' time from this day to discharge the decree debt.

(ii) Petitioner shall deposit in the executing Court Rs. 50,000/- (Rupees Fifty thousand only) for payment to respondent within one month from this day.

(iii) Petitioner shall be released from the civil prison forthwith.

(iv) He shall execute a bond in the executing court within a week of his release undertaking to comply with condition Nos. (i) and (ii) above.

(v) In case of non-compliance of any of the above conditions it will be open to the executing court to rearrest petitioner as provided under law without any further enquiry regarding his means.