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SOMASUNDARN v. HMT LTD. - WP(C) No. 17265 of 2006(E)  RD-KL 2028 (25 January 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMWP(C) No. 17265 of 2006(E)
1. HMT LTD.,
2. M/S.PRAKASH STORES,
For Petitioner :SRI.V.V.ASOKAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
M.SASIDHARAN NAMBIAR,J.W.P.(C)NO.17265 OF 2006
DATED THIS THE 25th DAY OF JANUARY, 2007
Petitioner is third judgment debtor in O.S.231/94, which is executed before Sub Court, Trichur in E.P.631/04. Executing Court as per order dated 22.6.06, directed arrest and detention of judgment debtors 1 to 4, holding that they have sufficient means but neglected to pay the decree debt. Only third judgment debtor challenged that order in this petition filed under Article 227 of Constitution of India.
2. Though notice was served on respondents 1 to 3, respondents did not appear.
3. Learned Counsel appearing for petitioner was heard.
4. Learned Counsel appearing for petitioner submitted that petitioner was impleaded only as legal heir of Kochunni Nair, second defendant in the suit and the properties of his father did not devolve on him and petitioner is therefore not liable to pay the decree debt and he has no means to pay the decree debt and second respondent firm has sufficient assets, which could be realised by first respondent decree holder and therefore the order is to be quashed. Learned Counsel appearing for petitioner also submitted that petitioner could W.P.(c)12283/06 2 not adduce evidence as sufficient opportunity was not granted and i such circumstances, the order is to be quashed.
5. Ext.P2 application shows that petitioner had sought an adjournment before the executing Court on 17.3.06. Arguments of learned Counsel appearing for petitioner was that no adjournment was granted and therefore petitioner could not adduce evidence and petitioner may be granted an opportunity to adduce evidence. In the light of the submissions, the order of arrest passed as against petitioner is set aside. Executing Court is directed to consider afresh whether petitioner is liable to be arrested in execution of the decree in E.P.631/04, after affording an opportunity to him to adduce evidence.
M.SASIDHARAN NAMBIAR,JUDGEAcd W.P.(c)12283/06 3
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