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AJITH KUMAR, S/O. CHELLAPPAN NADAR v. THE STATE BANK OF TRAVANCORE - WP(C) No. 525 of 2004(K)  RD-KL 8543 (25 May 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMWP(C) No. 525 of 2004(K)
1. AJITH KUMAR, S/O. CHELLAPPAN NADAR,
1. THE STATE BANK OF TRAVANCORE,
For Petitioner :SRI.R.T.PRADEEP
For Respondent :SRI.SATHISH NINAN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
O R D E R
PIUS C. KURIAKOSE, J.W.P.(C) No. 525 OF 2004
Dated this the 25th day of May, 2007
In this proceedings under Article 227 the petitioner who was the second judgment debtor in Ext.P1 decree obtained by the State Bank of Travancore impugns Ext.P3 order by which the execution court dismissed his application for re-calling the warrant which was ordered against him. The execution court became compelled to issue warrant when the petitioner did not enter appearance in response to the notice which was issued under Rule 37 of Order XXI CPC. The order of warrant is obviously not preceded by any enquiry regarding the sufficiency of the petitioner's means and his wilful negligence in the matter of discharging the decree debt. In other words, it is not preceded by enquiry under Rule 40 of Order XXI. Under these circumstances, in my view if the petitioner does not have to be aggrieved by the warrant which was refused to be re-called by Ext.P3. The warrant will be treated by the learned Sub Judge and by the parties as one for appearance of the petitioner. The petitioner will appear before the court below on the date posted by the execution court after he obtains copy of this judgment and thereupon the court will conduct an enquiry. Upon appearance the petitioner will be released on personal bond without WPC No.525/2004 2 sureties and the court will pass orders to detain him in prison only on the basis of the enquiry under Rule 40 of Order XXI CPC. The Writ Petition is disposed of as above. No costs.
PIUS C. KURIAKOSE, JUDGEbtt WPC No.525/2004 3
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