Kerala High Court
M/S Silpa Projects And Infrastructure ... vs M/S Cheriyan Varkey Construction Co Pvt ... on 17 October, 2025
O.P.(C) No. 1608 of 2025
1
2025:KER:77689
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K. NATARAJAN
FRIDAY, THE 17TH DAY OF OCTOBER 2025 / 25TH ASWINA, 1947
OP(C) NO. 1608 OF 2025
AGAINST THE ORDER DATED 17.06.2025 IN EP NO.110 OF
2023 OF ASSISTANT SESSIONS COURT/II ADDITIONAL SUB
COURT,ERNAKULAM
PETITIONERS/RESPONDENTS/JUDGMENT DEBTORS:
1 M/S SILPA PROJECTS AND INFRASTRUCTURE INDIA PVT
REG OFFICE AT NORTH AVENUE BUILDING,
PARAMARA ROAD, KOCHI, PIN - 682 018,
REPRESENTED BY ITS MANAGING DIRECTOR - TS SANIL.
2 TS SANIL
AGED 56 YEARS
MANAGING DIRECTOR M/S SILPA PROJECTS AND
INFRASTRUCTURE INDIA PVT.
REG OFFICE AT NORTH AVENUE BUILDING,
PARAMARA ROAD, KOCHI, PIN - 682 018.
BY ADVS.
SRI.ARUN BABU
SHRI.ANEESHRAJ R.
RESPONDENTS/PETITIONERS/DECREE HOLDER:
1 M/S CHERIYAN VARKEY CONSTRUCTION CO PVT LTD
REG OFFICE, G 95, PANAMPALLI NAGAR,
KOCHI, PIN - 682036,
REPRESENTED BY ITS DIRECTOR, REJI.M CHERIAN.
2 REJI M CHERIYAN
AGED 55 YEARS, S/O CHERIYAN VARKEY, DIRECTOR,
CHERIYAN VARKEY CONSTRUCTION CO PVT LTD 5TH
FLOOR, ALPHA PLAZA, KV VALLON ROAD, KOCHI, PIN -
682020
O.P.(C) No. 1608 of 2025
2
2025:KER:77689
BY ADVS.
SHRI.A.DINESH RAO
SHRI.YOHAAN KAITHARA XAVIER
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
17.10.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C) No. 1608 of 2025
3
2025:KER:77689
JUDGMENT
(Dated this the 17th day of October, 2025)
This Original Petition is filed by the
petitioners/judgment debtors for setting aside the order
dated 17.06.2025 in EP No. 110/2023 in O.S.No.205/2022
passed by the Sub Court, Ernakulam.
2. Heard the learned counsel for the petitioners and
the learned counsel for respondents.
3. The case of the petitioners is that the
respondents obtained a decree under the Lok Adalat
settlement and filed EP No.110/2023 for recovery of the
amount before the execution court. A notice has been
issued to petitioners under Order 21 Rule 37 of the CPC,
they appeared and stated, there is no means. The trial
court immediately passed the order for issuing the steps to
issuing warrant against the petitioners vide impugned order
dated 17.06.2025 against the petitioners. Hence, the
petitioners approached this Court.
2025:KER:77689
3. The learned counsel for the petitioners contended
that when the petitioners submitted no means, then an
inquiry should have been conducted by the trial court as
required under Order 21 Rule 40 of the Code of Civil
Procedure, 1908. But, no inquiry has been conducted, but
straight away passed the warrant by the trial court, which is
not correct. Therefore, prayed for setting aside the
impugned order.
4. Per contra, the learned counsel for the
respondents have seriously objected contending that the
petitioners are having various construction companies and
having Benz Car etc. A detailed affidavit has been filed by
the respondents. Therefore, there is no need to conduct
any enquiry and the order under challenge is do not call for
any interference. Hence, prayed for dismissing the petition.
5. Having heard the arguments and perused the
records. The points that arose for consideration are as
follows:-
2025:KER:77689
i. Whether the order under challenge required to be
any interference?
On perusal of the records and hearing the arguments
there was three cases filed by the respondent and obtained
decree in all three cases and three execution petitions have
been filed and present petition under challenge is EP
No.110/2023 for realization of Rs.20 Lakhs. Notice under
Order 21 Rule 37 of the CPC has been admittedly served on
the petitioners/judgment debtors to appear, and submitted,
the judgment debtors have no means. The execution court
passed the order for issuing the warrant against the
judgment debtors for only mentioning that it is a consent
decree, therefore warrant has been issued, even the
execution court not satisfied itself regarding the submission
made by the petitioners is correct or not. By looking into
the affidavit filed by the respondents/decree holders stating
that the petitioners as a builder having means having Benz
car etc. But the order under challenge does not reveal
anything, and cryptic order has been passed by issuing a
2025:KER:77689
warrant. Therefore, it is against the provisions of Order 21
Rule 40 of the CPC, without making any inquiry or even
satisfying itself for rejecting the prayer of the petitioners
and allowing the request of the respondents/decree holders
to issue warrant. Therefore, the order under challenge is
required to be set aside and the matter is required to be
remitted back for fresh consideration.
5. Accordingly, the Original Petition is allowed.
i. The order under challenge passed on
17.06.2025 by the trial court in EP
No.110/2023 is hereby set aside.
ii. The matter is remitted back for fresh
consideration as required under Order 21
Rule 40 of the CPC and dispose the matter
within 2 months from the date of receipt of
copy of the order.
Sd/-
K. NATARAJAN
JUDGE
S.M.K.
2025:KER:77689
APPENDIX OF OP(C) 1608/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE EP 110/2023 DATED 18-07-
2023 FILED BY THE RESPONDENT BEFORE THE
LEARNED SECOND ADDITIONAL SUB COURT
ERNAKULAM
Exhibit P2 TRUE COPY OF THE OBJECTION DATED 11-12-2023
FILED BY THE PETITIONER BEFORE THE LEARNED
SECOND ADDITIONAL SUB COURT ERNAKULAM
Exhibit P3 TRUE COPY OF THE EA 46/2024 DATED 18-01-
2023 IN EP 110/2023 OF THE SECOND
ADDITIONAL SUB COURT ERNAKULAM FILED BY THE
RESPONDENT
Exhibit P4 TRUE COPY OF THE OBJECTION IN EA 46/24 IN
EP110/2023 DATED 03-02-2024 FILED BY THE
PETITIONER BEFORE THE LEARNED SECOND
ADDITIONAL SUB COURT ERNAKULAM
Exhibit P5 TRUE COPY OF THE AFFIDAVIT DATED 06-06-2024
FILED BY THE PETITIONER BEFORE THE LEARNED
SECOND ADDITIONAL SUB COURT ERNAKULAM
Exhibit P6 TRUE COPY OF THE OBJECTION DATED 11-02-2025
FILED BY THE RESPONDENT BEFORE THE LEARNED
SECOND ADDITIONAL SUB COURT ERNAKULAM IS
Exhibit P7 THE TRUE COPY OF THE PROCEEDINGS DATED 17-
06-2025 IN EP 110/2025 OF THE LEARNED
SECOND ADDITIONAL SUB COURT ERNAKULAM
Exhibit P8 THE TRUE COPY OF THE JUDGMENT DATED
19/11/2015 IN OP(C) 1330/2015 -NIZAR VS M/S
INDUS BANK LIMITED
RESPONDENT EXHIBITS
EXHIBIT R1 TRUE COPY OF THE AWARD PASSED BY THE LOK
ADALAT DATED 11/02/2023
EXHIBIT R2 TRUE COPY OF THE JUDGMENT, INCORPORATING
THE AWARDAND DATED 21/02/2023 IN O.S.NO.
205/2022 ON THE FILE OF THE HONOURABLE SUB
COURT, EMAKULAM
2025:KER:77689
EXHIBIT R5 TRUE COPY OF THE OBJECTION SUBMITTED BY THE
JUDGMENT DEBTOR (PETITIONER) DATED
11/12/2023 TO EXHIBIT R4
EXHIBIT R6 TRUE COPY OF THE EA NUMBERED AS EA
NO.46/2024 IN EP 110/2023 AND DATED
18/01/2024 ON THE FILE OF THE SUB COURT,
EMAKULAM, ALONG WITH THE AFFIDAVIT
EXHIBIT R7 TRUE COPY OF THE OBJECTION IN
E.A.NO.46/2024 IN E.P.NO. 110/2023 AND
DATED 03/02/2024 ON THE FILE OF THE SUB
COURT, EMAKULAM
EXHIBIT R8 TRUE COPY OF THE AFFIDAVIT DATED 06/06/2024
IN E.P.NO. 110/2022 ON THE FILE OF SUB -
COURT, ERNAKULAM
EXHIBIT R13 TRUE COPY OF THE OBJECTION DATED 16/01/2025
TO EXHIBIT R12
Exhibit R10 TRUE COPY OF THE PROCEEDING OF E.P.NO.
110/2023 OBTAINED FROM DCMS
Exhibit R3 TRUE COPY OF THE E.P.NO. 110 OF 2023 DATED
18/07/2023 ON THE FILE OF THE SUB COURT,
EMAKULAM
Exhibit R4 TRUE COPY OF THE AFFIDAVIT AND PETITION
FILED UNDER ORDER 21 RULE 43 AND NUMBERED
AS E.A,NO. 462/2023 IN E.P NO.110/2023
DATED 18/07/2023 ON THE FILES OF THE
HONOURABLE SUB COURT, EMAKULAM
Exhibit R11 TRUE COPY OF E.P. NO. 16/2024 DATED
18/01/2024 ON THE FILE OF THE SUB COURT,
EMAKULAM
Exhibit R9 TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT DATED 11/02/2025 TO EXHIBIT R8
Exhibit R12 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF
THE E.P.NO. 16/2024 IN O.S.NO. 205/2022
DATED 18/01/2024 ON THE FILE OF THE SUB
-COURT, EMAKULAM
Exhibit R 14 TRUE COPY OF THE PROCEEDINGS PERTAINING TO
E.P.NO. 16/2024 OBTAINED FROM DCMS
Exhibit R15 TRUE COPY OF E.P.NO. 65/2025 IN O.S.NO.
205/2022 DATED 20/06/2025 ON THE FILE OF
THE SUB COURT, EMAKULAM
