LibIn Vs. Jayaprakash, S/O.Kunjalikkattil Veettil - Court Judgment

Excerpt:
[mohan shantanagoudar j.] this writ petition is tiled under articles 226 and 227 of the constitution of india, praying to call for records in misc. no.38/2003 and ex.no.342/2007 on the file of prl. civil judge at tumkur.o r d e r thomas p. joseph, j. -------------------------------------- o.p.(c) no.571 of 2010 -------------------------------------- dated this the 4th day of november, 2010. petitioner is defendant no.1 in o.s.no. 1490 of 2010 of the court of learned munsiff, irinjalakuda. on an alleged breach of contract to marry, respondents have sued petitioner for recovery of damages and alleging that petitioner, to delay and avoid the process of court or delay execution of the decree that may be passed against him is attempting to go abroad, respondents filed i.a.no.4170 of 2010 to direct petitioner to either deposit rupees one lakh or furnish security for the plaint claim and on its failure to arrest and detain him in civil prison. petitioner appeared through counsel and filed objection. while denying the allegation of breach of agreement, he contended that he has no intention to go abroad. he also denied the allegations against him in ext.p2, application. learned munsiff has passed ext.p4, order issuing warrant of arrest against petitioner to bring him before court and to show cause why he shall not furnish security for his appearance in court. that order is under challenge. learned counsel states that petitioner is prepared to appear before court through counsel and show cause as directed in ext.p4, order. 2. the purport of warrant contemplated under rule 1 of order 38 of the code of civil procedure is to bring the defendant before court to answer the notice as to why he shall not furnish security for his appearance. now that petitioner has offered to appear before court through counsel and show cause why he shall not furnish security, i am persuaded to think that petitioner could be permitted to do so rather than he being arrested and produced before the court. resultantly this petition is disposed of in the following lines: i. order to issue warrant of arrest against petitioner will stand in abeyance. ii. in the meantime, petitioner shall appear in the court below through counsel and show cause why he shall not furnish security as directed in ext.p4, order. he shall do so within a week from this day. in case of failure, order for issue of warrant of arrest will stand revive.

Judgment:
O R D E R

THOMAS P. JOSEPH, J.

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O.P.(C) No.571 of 2010

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Dated this the 4th day of November, 2010.

Petitioner is defendant No.1 in O.S.No. 1490 of 2010 of the court of learned Munsiff, Irinjalakuda. On an alleged breach of contract to marry, respondents have sued petitioner for recovery of damages and alleging that petitioner, to delay and avoid the process of court or delay execution of the decree that may be passed against him is attempting to go abroad, respondents filed I.A.No.4170 of 2010 to direct petitioner to either deposit Rupees one lakh or furnish security for the plaint claim and on its failure to arrest and detain him in civil prison. Petitioner appeared through counsel and filed objection. While denying the allegation of breach of agreement, he contended that he has no intention to go abroad. He also denied the allegations against him in Ext.P2, application. Learned Munsiff has passed Ext.P4, order issuing warrant of arrest against petitioner to bring him before court and to show cause why he shall not furnish security for his appearance in court. That order is under challenge. Learned counsel states that petitioner is prepared to appear before court through counsel and show cause as directed in Ext.P4, order.

2. The purport of warrant contemplated under Rule 1 of Order 38 of the Code of Civil Procedure is to bring the defendant before court to answer the notice as to why he shall not furnish security for his appearance. Now that petitioner has offered to appear before court through counsel and show cause why he shall not furnish security, I am persuaded to think that petitioner could be permitted to do so rather than he being arrested and produced before the court.

Resultantly this petition is disposed of in the following lines:

i. Order to issue warrant of arrest against petitioner will stand in abeyance.

ii. In the meantime, petitioner shall appear in the court below through counsel and show cause why he shall not furnish security as directed in Ext.P4, order. He shall do so within a week from this day. In case of failure, order for issue of warrant of arrest will stand revive.