This Writ petition by the judgment debtor whose personal freedom and liberty is in jeopardy on account of a warrant issued against him for being arrested for non payment of the amount due under the decree dated 31.3.2003 is knocking at the doors of this Court questioning the correctness and legality for the order dated 05.03.2007 passed in Execution Petition No.1118/2005 by the 15th Addl. City Civil and Sessions Judge. Bangalore City (CCCH-3) by raising several contentions.

2. The facts leading to the filing of this petition are as follows:

(i) respondents herein instituted a suit in O.S.No.2317/86 for a judgment and decree for O.S.No.2317/86 for a judgment and decree for recovery of money and for charge on the suit schedule property and other reliefs. During the pendency of suit, the petitioner’s father who had been arrayed as 2nd defendant died on 9-7-1993 and the legal representatives of the deceased 2nd defendant had been brought on record. Petitioner herein has been arrayed as defendant No.2(a).

(ii) The said suit on contest came to be decreed vide judgment and decree dated 31.3.2003. In order to execute the said decree, the plaintiff i.e., the respondent herein instituted execution proceedings by filing Execution Petition No.1118/05 against the petitioner and seven others. On service of notice, the petitioner and others have entered appearance in the execution petition. During the pendency of the execution petition, the decree holder sought for an order of arrest against the petitioner herein and in support of the said prayer, an affidavit came to filed by decree holder. The petitioner herein resisted the said prayer by filing objections contending his portion of the suit schedule property allotted under partition dated 1-12-1993 was not under his ownership since it was further partitioned and on 6-7-1998 under which his share was allotted to this wife & children and as such, he did not possess any right, title or interest over the same and sought for dismissal of the execution petition. The court below on consideration of the pleas advanced by Decree Holder and Judgment Debtor formulated the following question for consideration:

Whether the arrest warrant can be issued against the judgment debtor?

(iii) On consideration of the rival contentions, the court below answered the point in affirmative and ordered for issue of arrest warrant against the judgment debtor 2(a) after the decree holder deposits into the office of the Court, a sum of Rs.500/- for the subsistence of the judgment debtor. It is this order dated 5-3-2007, which is now questioned in this writ petition.

3. I have heard Sri. Halaswamy, learned Counsel appearing for Sri.Anant Mandagi for the petitioner and Sri. D.R.Sundaresha, learned Counsel appearing for the respondent.

4. Learned Counsel for the petitioner would contend that court below was in error in ordering the arrest of the JDR on the basis of a bald statement made in the affidavit. It is contended by the petitioner’s counsel that the petitioner was not the defendant before the Court below and he is only a legal representative and as such the claim against the legal representative would be only to the extent of property of the deceased which has not been duly disposed of against which decree can be executed. It is also contended that no separate application has been filed for issue of arrest warrant. It was also contended that under Order 21 Rule 40, an enquiry is to be held and this aspect has not been considered by executing Court, the order of the Court below is erroneous & liable to be set aside. He would also submit that decree in question cannot be enforced against the petitioner as Section 50 of CPC Is attracted. It is also contended that decree has to be executed against the firm and that too only when there is limited liability of the partner of the firm and the decree holder cannot enforce the decree for recovering the same only against the petitioner herein. In support of this