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MOHAMMED KUNJU, S/O.KADARKUNJU v. C.RADHAKRISHNA PILLAI - WP(C) No. 3554 of 2007(W)  RD-KL 10187 (13 June 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMWP(C) No. 3554 of 2007(W)
1. MOHAMMED KUNJU, S/O.KADARKUNJU,
1. C.RADHAKRISHNA PILLAI,
For Petitioner :SRI.R.SATISH KUMAR
For Respondent :SRI.BRIJESH MOHAN
The Hon'ble MR. Justice M.N.KRISHNAN
O R D E R
M.N.KRISHNAN, J.WP(C)No. 3554 OF 2007 W
Dated this the 13th May, 2007.
This writ petition is filed seeking to quash the order passed in E.P.37/04 in O.S.351/01 on 26.7.06. By rejecting the application the court had ordered to issue warrant of arrest against the judgment debtor. The said execution petition is filed to execute the decree passed against the writ petitioner. The writ petitioner has submitted that he has filed an insolvency petition before the Subordinate Judge's Court, Kollam to adjudicate him as insolvent and therefore the order of arrest may be recalled. The executing court disposed of the application holding that he had made a payment of Rs.25,000/- and thereafter he was released on a kychit, brought, re-arrested and, therefore, could not take the plea of this nature. Section 55(4) of CPC reads as follows:-
"Where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court may release him from arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realised or commit him to the civil prison in execution of the decree." WPC 3554/07 2 So, a reading of the above provision will give an indication that when a person intends to apply for declining him as insolvent he need not be sent to prison direct. In this case it is submitted that he had already applied for getting himself adjudicated as an insolvent under the provisions of the Insolvency Act. A person is adjudicated as insolvent primarily when it is found that his liabilities far exceed the assets. So, it will have a direct bearing on the capacity to wipe off the liability. Therefore, I feel the court below was not correct in ordering arrest warrant against him. Therefore, I direct the writ petitioner to appear before the court below and execute an undertaking that he will be present as and when required by the court and thereafter a further direction is also given to the Subordinate Judge, Kollam to dispose of I.P.20/06 which is pending before that court within a period of three months from the date of receipt of a copy of this judgment. The parties are directed to take copies and submit it before the above courts for further action and compliance. Till that time the judgment debtor need not be arrested and send to prison. M.N.KRISHNAN Judge jj
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