Partly allowed

C.v.Rappai v. M/S.Vyapara Vijayam Hire Purchase (P) Ltd.

Kerala HC11 Feb 2016OP(C)/76/2015

Case brief

AI extract

What is this about?

The court held that an executing court must provide an opportunity for the judgment-debtor to cross-examine the decree-holder's witness before ordering arrest. The judgment quashed the specific direction for detention while upholding liability, directing the witness to appear for examination.

What did the court decide?

Cross-examination of the witness permitted; detention direction removed; witness to appear on 15.03.2016.

C.v.Rappai Vs M/S.Vyapara Vijayam Hire Purchase (P)… — Execution and Attachment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

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THURSDAY, THE 11TH DAY OF FEBRUARY 2016/22ND MAGHA, 1937

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OP(C).No. 76 of 2015 (O)

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AGAINST THE ORDER IN E.P 451/2013 IN OS 372/2005 of PRINCIPAL SUB COURT,THRISSUR PETITIONER(S)/JUDGMENT DEBTOR 1 AND 3: -------------------------------------

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1. C.V.RAPPAI AGED 54 YEARS S/O.LATE VAREED CHIRAYATH HOUSE, KOZHUKKULLY THRISSUR.

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2. SINEESH P.S. S/O.SUKUMARAN, PUMMAKKUZHI HOUSE, PONNOOKKARA THRISSUR.

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BY ADVS.SRI.G.SREEKUMAR (CHELUR) SRI.K.R.ARUN KRISHNAN

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RESPONDENT(S):

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1. M/S.VYAPARA VIJAYAM HIRE PURCHASE (P) LTD THRISSUR-680 001.

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2. MARYKUTTY W/O.C.V.RAPPAI, CHIRAYATH HOUSE, KOZHUKKULLY PONNUKARA, THRISSUR-680 001.

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R1 BY ADV. SRI.N.SUKUMARAN (SR.) SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 76 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1. A TRUE COPY OF THE JUDGMENT IN OS NO.372/2005 ON THE FILE OF THE 1ST ADDL.SUB COURT, THRISSUR DATED 30/1/2010.

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EXT.P2. A TRUE COPY OF THE EP NO.451/2013 IN OS NO.372/2005 DATED 30/7/2013 ON THE FILE OF THE 1ST ADDL.SUB COURT, THRISSUR

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EXT.P3. A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN EP NO.451/2013 IN OS NO.372/2005 DATED 21/6/2014.

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EXT.P4. A TRUE COPY OF THE ORDER PASSED EP NO.451/2013 IN OS NO.372/2005 ON THE FILE OF THE 1ST PRINCIPAL COURT, THRISSUR DATED 29/11/2014.

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RESPONDENTS' EXHIBITS: NIL

//TRUE COPY//

P.A TO JUDGE

vdv

K.ABRAHAM MATHEW, J.

===================== O.P.(C) No.76 of 2015

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==========================

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Dated this the 11^th day of February, 2016

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JUDGMENT

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Petitioners are judgment debtors in O.S No. 372 of 2005 of

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Sub Court, Thrissur. The decree is for payment of money. In E.P No.451 of 2013 the respondent decree holder prayed for arrest and detention of the petitioners for nonpayment of the decree. By the impugned order the executing court found that they are liable to be arrested. This is challenged.

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Heard.

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In the impugned order it is stated that the petitioners failed

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to “rebut the claim by cross examination of the decree holder.” Learned counsel submits that it is sufficient that the petitioners are given an opportunity to cross examine the witness of the decree holder. I think the request is reasonable. It is also pertinent to note that though the impugned order states that the petitioners are liable to be arrested, there is no order for their detention. This is an irregularity in the order.

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OP.(C) No.985/2015

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In the result, this original petition is disposed of as follows:

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The witness of the decree holder shall appear

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before the executing court on 15.03.2016 so that the

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petitioner may cross examine him. If it is inconvenient for the witness to appear on that day, the executing court may grant one adjournment. But for cross examination of the witness no adjournment shall be granted to the petitioner. The orders shall be passed within two weeks from the date of closing of the evidence.

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Sd/K.ABRAHAM MATHEW, JUDGE

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vdv/12/02/16

C.v.Rappai v. M/S.Vyapara Vijayam Hire Purchase (P) Ltd.

Case brief

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C.v.Rappai v. M/S.Vyapara Vijayam Hire Purchase (P) Ltd.

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