JUDGEMENT
C.S DIAS,J. -
(1.)The revision petitioner is the judgment debtor in E.P.No.51/2016 in O.S.No.18/2014 of the Court of the Subordinate Judge, Chavakkad. The respondent is the decree holder. The respondent filed the above execution petition to execute a compromise decree dtd. 1/10/2015 passed in the above suit. As per the decree, the revision petitioner was directed to pay an amount of Rs.45,00,000.00 within 9 months from 1/10/2015 and in default to pay interest @ 12% per annum. A charge was also created on the immovable property comprised in re-survey No.25/7B of Pavaratty Village belonging to the revision petitioner and his wife. The execution court, by order dtd. 16/1/2019, found that the revision petitioner has sufficient means to discharge the decree debt. The said order was confirmed by this Court in O.P.(C) No.585/2019. In the meantime, the respondent had filed E.P.No.28/2019 to attach and sell the properties of the revision petitioner. When the execution petition was posted for production of draft sale proclamation, the revision petitioner filed O.P.(C) No.2884/2019 before this Court and contended that the respondent could not simultaneously proceed against the person and property. This Court directed the warrant of arrest issued against the revision petitioner to be kept in abeyance till the sale takes place in E.P.No.28/2019. An error had crept in the judgment in OP(C) No.2884/2019. The respondent had preferred R.P.No.90/2020 contending that there was misrepresentation on the part of the revision petitioner in relation to the amount that was deposited. But, this Court, by order dtd. 10/8/2022, closed R.P.No.90/2020, on the submission by the learned counsel appearing for the respondent that E.P.No.28/2019 was dismissed as not pressed, without prejudice to the right of the respondent to proceed with E.P.No.51/2016. Then, the execution court, by order dtd. 24/6/2022, issued a warrant of arrest against the revision petitioner on the ground that E.P.No.28/2019 was dismissed as not pressed. The course adopted by the court below in issuing a warrant of arrest against the petitioner is erroneous, improper and irregular. Hence the revision petition.
(2.)Heard; Sri.K.S.Bharathan, the learned counsel appearing for the revision petitioner and Sri.Ramachandran, the learned counsel appearing for the respondent.
(3.)The bone of contention of the learned counsel appearing for the revision petitioner is that the execution court had not conducted any eqnuiry as contemplated under Order XXI Rule 37 of the Code of Civil Procedure, 1908 (in short, Code) before issuing the warrant of arrest against the revision petitioner. Thus, the proceedings leading to the issuance of the warrant is vitiated and illegal, and is liable to be set aside.
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