VIJAYAKUMAR Vs. SREEKUMAR

JUDGEMENT

(1.) Judgment debtor in E.P.No.275 of 2010 in O.S.No.1481 of 2002 of the Court of learned Principal Munsiff, Thiruvananthapuram challenges Ext.P6, order dated June 18, 2011 issuing warrant of arrest to the petitioner under Rule 38 of Order XXI of the Code of Civil Procedure (for short, "the Code).

(2.) Respondent has obtained a decree against petitioner for payment of money and filed Ext.P4, E.P.No.275 of 2010. In the execution proceeding Ext.P5, notice under Rule 37 of Order XXI of the Code was issued to the petitioner. It would appear the from endorsement of process server on Ext.P5 that since petitioner was not found in the house where he is allegedly residing, notice was attempted to be served on his wife who refused to accept the notice and thereon notice was affixed on the outer door of the said building. Based on that report executing court issued Ext.P6, order stating that notice under Rule.37 is affixed, petitioner remained absent, he is set ex parte and thereon warrant under Rule.38 of Order XXI of the Code was issued. Now the case is posted on 27.07.2011 for return of warrant.

(3.) Learned counsel has submitted that there was no scope for issuing notice under Rule 37 of Order XXI of the Code as there was no prayer in Ext.P4, execution petition for personal execution against petitioner and hence the executing court was not correct even in issuing notice under Rule 37 of Order XXI of the Code. It is also contended that there was no proper service of notice as required under Rule 15 of Order V of the Code in that it was not a case where there was no possibility of petitioner being found in his house within a reasonable time so that, attempt could have been made to serve notice on any adult member of the family. In the circumstance, it is contended that service of notice by affixture under Rule 15 of Order V of the Code is not proper. The further contention is that at any rate, no enquiry was conducted regarding means of petitioner before warrant of arrest was issued to the petitioner.