K A JOSE Vs. P V THOMAS

JUDGEMENT

(1.) Petitioner is judgment debtor in O.S.429/04. First respondent is the decree holder. E.P. 122/06 was filed for arrest and detention of the petitioner contending that he has sufficient means; but neglected to pay the decree debt. Petitioner pleaded no means. An order of arrest was passed finding that petitioner has sufficient means. Petitioner filed E.A.303/06 under sections 55(3) and 55(4) of Civil Procedure Code. Under Ext.P7 order learned Munsiff dismissed the application. This petition is filed under Article 227 of Constitution of India to quash Ext.P7 order.

(2.) Learned counsel appearing for petitioner was heard.

(3.) The argument of learned counsel appearing for petitioner was that under sub section (3) of Section 55, when a judgment debtor is arrested and brought before court, the court has to inform him that he may apply to be declared an insolvent and that he may be discharged, if he has not committed any act of bad faith regarding the subject of the application and if he complies with the provisions of the law of insolvency for the time being in force and under sub section (4) if the judgment debtor expresses his intention to apply to be declared an insolvent and furnishes security to the satisfaction of the court that within one month so apply, and that he will appear, when called upon, he may be released and if he fails to apply the court may direct the security to be realised or commit him to civil prison. The argument of learned counsel appearing for petitioner is that learned Munsiff has not correctly appreciated the prayer of the petitioner and therefore Ext.P7 order is to be quashed. Learned counsel appearing for petitioner submits that subsequent to the order petitioner was arrested and therefore petitioner is entitled to apply under section 55(3).