Trans India Constructions and Satish Nair Proprietor vs Aswani Kumar Nair and Sheela Rani

Thomas P. Joseph, J.

1.Petitioners challenge the order dated July 06, 2011 on E.A. No. 249 of 2011 in O.S. No. 212 of 2008 of the court of learned Additional Sub Judge-I, Thiruvananthapuram. Respondents obtained a decree for recovery of money against Petitioners and sought personal execution against second Petitioner. Executing court found means for second Petitioner and issued warrant of arrest. According to the second Petitioner, he learned about the ex parte judgment and decree only when the Amin attempted to arrest him. It is contended that Petitioners made certain payments to the Respondents and filed E.A. No. 249 of 2011 to recall the warrant of arrest against second Petitioner. That application was dismissed by the executing court as per the impugned order observing that though Petitioners were directed to pay substantial amount, only Two lakhs rupees was paid and hence there is No. reason to recall the warrant. That order is under challenge. Learned Counsel submitted that the decree itself was passed ex parte without summons or information to the Petitioners. It is also pointed out that Petitioners have valid contentions to be raised on the trial side. I have heard learned Counsel for Respondents as well. Learned Counsel stated that only Rupees Three lakhs was paid to the Respondents.

Now I am concerned with the question whether executing court was right in dismissing E.A. No. 249 of 2011. Having regard to the circumstances stated before me I am inclined to grant some time to the Petitioners pay the balance amount due (without prejudice to the contentions if any that Petitioners may urge on the trail side).

Resultantly, Civil Revision Petition is disposed of directing that warrant of arrest issued to the second Petitioner will stand in abeyance for a period of two months from this day subject to the following conditions:

(a) Second Petitioner shall deposit in the executing court for payment to the Respondents a sum of Rupees Three lakhs within one month from this day.

(b) Second Petitioner shall deposit another Rupees Three lakhs in the executing court for payment to Respondents within two months from this day.

(c) If any of the above conditions is not complied it will be open to the executing court to proceed with execution (provided there is No. other legal impediment in doing so).

(d) If Petitioners are desirous of paying the balance amount due in installments, they can request the executing court to grant such permission during the said period of two months. If any such request is made the executing court may decide on that after hearing the Respondents as well.

It is made clear that above payments mentioned in Clauses (a) and (b) are to be made without prejudice to the contentions if any Petitioners may urge on the trail side, if they are entitled to that course.