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IN THE HIGH COURT OF KERALA AT ERNAKULAM
MURALI PURUSHOTHAMAN, J
U.K. ABDU – Appellant
Versus
M/S. KERALA GRAMIN BANK – Respondent
OP(C) NO. 587 OF 2026
| Table of Content |
|---|
| 1. judgment debtor's inability to pay as a defense in execution. (Para 1) |
| 2. challenge to execution based on failure of inquiry process. (Para 2 , 3) |
| 3. court's requirement to meet procedural safeguards. (Para 4 , 5) |
| 4. setting aside of warrant and order compliance with law. (Para 6) |
JUDGMENT
The petitioner is the judgment debtor in E.P No.31 of 2020 in O.S No.835 of 2014 on the files of the Court of the Munsiff Magistrate, Thamarassery. The respondent is the decree holder. The suit was decreed directing the petitioner to pay an amount of Rs.5,40,283/- along with 9% interest from 31.10.2014 to 23.06.2015 and thereafter 6% interest till the realisation of the amount.
2. The respondent filed E.P No.31 of 2020 for execution of the decree. The petitioner entered appearance and filed objection stating that he has no means to pay the decree debt. He also filed Ext.P3 affidavit under Order XXI Rule 41(2) of the Code of Civil Procedure (for short ‘CPC’), 1908. The respondent filed Ext.P4 objection to Ext.P3. The learned Munsiff, by Ext.P5 order, found that the petitioner has not produced any documents pertaining any ailments to show that he cannot earn a livelihood, although he stated that he has some ailments and therefore, it is just to proceed with the E.P and posted the matter for payment on 11.07.2025. Pursuant to Ext.P5, warrant was issued to the petitioner on 11.07.2025. Ext.P5 is challenged in this original petition.
3. This original petition is filed contending, inter alia, that Ext.P5 order has been passed without conducting an enquiry in terms of Order XXI Rule
41(2) of the CPC.
4. Heard Sri.K.M.Jamaludheen, the learned counsel for the petitioner and Sri.Jawahar Jose, the learned Standing Counsel for the Bank.
5. Warrant of arrest shall not be ordered against the judgment debtor without following the procedure as contemplated in Order XXI Rule 41(2) of the CPC.
6. Since warrant has been issued against the petitioner without following the mandatory procedure under Order XXI Rule 41(2) of the CPC, I set aside Ext.P5 order and the order issuing warrant against the petitioner. It will be open to the Execution Court to proceed with the E.P, in accordance with law.
The original petition is disposed of.
Sd/-
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