ABDURAHMAN M. Vs. PAYYANNUR URBAN CO-OP SOCIETY

JUDGEMENT

(1.) The above original petition has been filed seeking to set aside Ext.P3 order dtd. 23/5/2024 in E.P.No.53 of 2022 in ARC No.758 of 2019 on the file of the Subordinate Judge's Court, Payyannur.

(2.) Short facts necessary for the disposal of the original petition are as follows: Petitioner is the respondent/judgment debtor in E.P.No.53 of 2022 on the file of the Subordinate Judge's Court, Payyannur and the respondent herein is the petitioner/decree holder in the said execution petition. In execution of the award of the Assistant Registrar of Co-operative Societies (General), Payyanur dtd. 20/6/2019 in ARC No.758 of 2019 respondent filed E.P.No.53 of 2022 before the Court of Subordinate Judge, Payyannur. As per the execution petition, the total award amount along with interest comes to Rs.11,56,511.00 and the mode of assistance of the court required are as follows:

(3.) The petitioner contended that as per the execution petition, the first prayer is to sell the mortgaged property of the petitioner measuring an extent of 4.45 Ares (11 cents) in re-survey no.9/3 of Payyannur amsom, Kavvayi desom of Payyannur Taluk, which has been mortgaged with the bank at the time of availing the loan. A detailed counter statement was filed by the petitioner in the execution petition contending that the entire property need not be sold and only a portion of the property need be sold so as to fulfil the decree debt as the property is situated in the middle of the town and is having a value of more than Rs.5,00,000.00 per cent. It is the case of the petitioner that the execution court did not consider the counter statement and without proceeding with the sale of the mortgaged property passed Ext.P3 order dtd. 23/5/2024 issuing warrant of arrest, that too without conducting an enquiry under Rule 40(1) of Order XXI CPC and without proving the means of the judgment debtor. The contention of the petitioner is that issuance of Ext.P3 order whereby arrest warrant was issued against him is in violation of the provisions of the CPC and also the judgment of this Court in Anilkumar v. Divya, 2023 (5) KHC 341. The petitioner would contend that in Anilkumar's case cited supra it was categorically held that the execution court cannot invoke the remedy under Clause (c) of Sec. 51 CPC by issuing arrest warrant against the judgment debtor without exhausting the remedy under Clause (b) of Sec. 51 CPC by the sale of movable or immovable property if any available. So, on the basis of the same, the first contention of the petitioner is that before issuing arrest warrant, the execution court ought to have proceeded with the sale of movable or immovable property and only thereafter the court could have resorted to the arrest and detention of the judgment debtor in civil prison. Secondly, it is contended that before issuing arrest warrant as per Ext.P3, the procedures as contemplated in Rule 40(1) of Order XXI CPC have not been followed.