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2026 Supreme(Online)(Ker) 6981
IN THE HIGH COURT OF KERALA AT ERNAKULAM
T.R.RAVI, J
IYPE MANI – Appellant
Versus
R RADHAKRISHNAN NAIR – Respondent
OP(C) NO. 2142 OF 2024
For the Appellants/Petitioners: SRI.ENOCH DAVID SIMON JOEL, SRI.S.SREEDEV, SRI.RONY JOSE, SHRI.LEO LUKOSE, SRI.KAROL MATHEWS, SEBASTIAN ALENCHERRY, SHRI.DERICK MATHAI, SAJI, SHRI.KARAN SCARIA ABRAHAM, SHRI.ITTOOP JOY THATTIL
For the Respondents: SHRI.PRAMOD J.DEV
Important Points
Subject
Civil Law - Execution Proceedings
Act Referred
Headnote
(C) NO. 2142 OF 2024 wherein the petitioner seeks to set aside an order that commits him to civil prison. The court found that the order did not follow the procedure set under Order XXI of the Code of Civil Procedure, particularly the discretionary power under Rule 37. The court held that the order lacked an exercise of discretion without allowing the judgment debtor to show cause. Consequently, the court set aside the impugned order while ensuring compliance with necessary procedural requirements in any future detentions.
| Table of Content |
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| 1. court's decision to set aside the order requiring procedural compliance. (Para 1 , 2) |
| 2. directive to adhere to procedural requirements in future detentions. (Para 3) |
JUDGMENT
The prayer in the original petition is to set aside Ext.P5 order dated 6.9.2024 in E.P. No.44 of 2018 in O.S. No.30 of 2014 on the files of the Subordinate Judge’s Court, Mavelikara. By the said order, the petitioner was committed to civil prison for a period of three months. It is submitted that the petitioner has thereafter been released.
2. The case of the petitioner is that the order was issued without complying with the procedure prescribed under Order XXI of the Code of Civil Procedure . The power under Order XXI Rule 37 is discretionary and is to be exercised after directing the judgment debtor to show cause why he should not be committed to civil prison. The order impugned does not show an exercise of discretion after directing the judgment debtor to show cause.
3. In the above circumstances, since the petitioner is already released, the original petition is disposed of by setting aside Ext.P5 order and directing the court below to proceed with the execution petition and take it to its logical conclusion. If it becomes necessary to detain the petitioner in civil prison, the court below shall comply with the procedure laid down in the Code of Civil Procedure .
SD/-
