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2022 Supreme(Online)(KER) 45115
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 10TH DAY OF JANUARY 2022 / 20TH POUSHA, 1943 OP(C) NO. 39 OF 2022 AGAINST THE ORDER IN EP 378/2018 IN OS 11/2012 OF I ADDITIONAL SUB COURT, KOZHIKODE PETITIONER/RESPONDENT/JUDGMENT DEBTOR:
HABEEB RAHMAN K.P, AGED 48 YEARS, S/O KUNHALI, THCHAMKOTTUMMAL HOUSE, PAROPADI P.O, MARIKKUNNU, KOZHIKODE-673009.
BY ADVS.
SRI.R.SUDHISH SMT.M.MANJU RESPONDENTS/PETITIONERS/DECREE-HOLDERS:
1 V.ABDUL RAFEEQUE, AGED 57 YEARS, S/O.IBRAHIM KUNHI, REPRESENTED BY POWER OF ATTORNEY HOLDER HAFSATH.K, W/O.V.ABDUL RAFEEQUE, 'DEW DROPS', KANNOOKKARA, THANA, KANNUR-670012.
2 V.ABDUL RASHID, AGED 55 YEARS, S/O.IBRAHIMKUNHI, 'DEW DROPS', KANNOOKKARA, THANA, KANNUR-670012.
3 V.ABDUL RAHIM, AGED 53 YEARS, S/O IBRAHIMKUNHI, 'DEW DROPS', KANNOOKKARA, THANA, KANNUR-670012.
4 V.ABDUL RAUF, AGED 48 YEARS, S/O.IBRAHIMKUNHI, 'DEW DROPS', KANNOOKKARA, THANA, KANNUR-670012.
5 V.RAHANAVAS, AGED 44 YEARS, S/O.IBRAHIMKUNHI, REPRESENTED BY POWER OF ATTORNEY HOLDER, KHADEEJA, W/O.REHANAVAS, KHADEEJAS, KATTAMPALLY, KANNUR-670011.
6 V.RAZAL, AGED 42 YEARS, S/O.IBRAHIMKUNHI, THROUGH POWER OF ATTORNEY HOLDER BROTHER 4TH PLAINTIFF V.ABDUL RAUF, ALL RESIDING AT RAZIYA MANZIL, OPP.BASIC TRAINING SCHOOL, KANNUR-670002.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Ext.P1 order, whereby the learned Additional Sub Judge-I, Kozhikode issued arrest warrant against the petitioner, who is the sole judgment debtor in the above case, is under challenge in this Original Petition filed under Article 227 of the Constitution of India.
2. According to the petitioner, the Execution Court failed to consider the plea of no means pleaded by the petitioner. It is submitted further that as per Exts.P2 and P3 applications, the petitioner/judgment debtor filed application to set aside the exparte decree, after condoning the delay in 970 days. An early disposal of Exts.P2 and P3 is another prayer in this petition.
3. I have gone through Ext.P1 order. I could not find any perversity or arbitrariness in passing the order, after finding that the petitioner is having means to pay the decree debt. Therefore, I am not inclined to interfere with the said order. In the meanwhile, it is submitted by the learned counsel for the petitioner that the petitioner is ready to deposit a portion of the decree debt. Though the learned counsel offered Rs.1,50,000/-, considering the principal debt itself comes to the tune of Rs.15 lakh, it is ordered that the execution proceedings will be kept in abeyance, on condition that the petitioner shall deposit or pay Rs.2,00,000/- (Rupees Two lakh only), within 30 days from today, till the disposal of Exts.P2 and P3 applications. If Rs.2 lakh not deposited as directed, there will be no stay in operation.
4. The learned Sub Judge is directed to consider Exts.P2 and P3 applications also, within a period of 30 days. The further proceedings in the E.P. shall be governed by orders passed in Exts.P2 and P3.
If the petitioner expresses his willingness to pay the decree debt in instalments or otherwise, the learned Sub Judge can consider the same and pass appropriate orders, after hearing both sides, on condition that Rs.2,00,000/- ordered to be deposited as directed herein, if deposited within time.
This Original Petition is disposed of, accordingly.
Sd/-
A.BADHARUDEEN, JUDGE.
ww APPENDIX OF OP(C) 39/2022 PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF THE ORDER IN E.P.NO.378/2018 IN O.S NO. 11 OF 2012 ON THE FILE OF 1ST ADDITIONAL SUB JUDGE DATED
7.12.2021.
EXHIBIT P2 COPY OF THE I A NO.2/2021 IN OS NO.11 OF 2012 ON TE FILE OF THE SUB COURT, KANNUR DATED 17.11.2021. (WITH TYPED COPY).
EXHIBIT P3 COPY OF THE I A NO.1/2021 IN OS NO.11 OF 2012 ON THE FILE OF SUB COURT, KANNUR DATED 17.11.2021 (WITH TYPED COPY).
EXHIBIT P4 COPY OF THE ORDER PASSED BY THE HON'BLE HIGH COURT OF KERALA IN BAIL APPL.NO/6340/2021 DATED 28.09.2021.
EXHIBIT P5 COPY OF THE COMMON ORDER PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE, KUNNAMANGALAM IN CMP NO.2977 OF 2021 AND 2979/2021 IN CRIME NO.414/2021 DATED 04.08.2021.
