Andhra HC (Pre-Telangana)
M.S. Khan vs Karri Appa Rao on 17 March, 1998
Equivalent citations: 1998(3)ALD83, 1998(3)ALT16
Author: Syed Saadatulla Hussaini
Bench: Syed Saadatulla Hussaini
JUDGMENT
1. Heard both the Counsel.
2. This revision is filed on the execution side. Judgment-Debtor is the petitioner herein. The learned Counsel for the petitioner submits that the lower Court has illegally committed the petitioner to civil imprisonment after arrest in execution of decree.
3. It is stated that the petitioner was arrested on execution of the warrant and brought to the Court on 13-7-1995 when execution petition was filed under Order 21, Rule 37 C.P,C. to order arrest of the petitioner-Judgment-Debtor after issuing notice under Rule 37 C.P.C. to realise the E.P. amount. It is stated that the E.P. amount to be realised from the Judgment-Debtor is Rs. 42849.25 ps.
4. The petitioner on being brought under arrest warrant to the Court, filed a memo before the executing Court stating to the effect that as Judgment-Debtor he has no means to pay the amount and his debts exceed his assets and that he will file an application to declare him as insolvent. As such, he may be released for enabling him to file insolvency petition. It is not disputed before me by either of the counsel that the memo was filed by the petitioner purported to be under Section 55, Sub-section (4) of the C.P.C. The learned Judge acted illegally, when the said memo was filed, granting him time to furnish security of Rs.50,000/- with two sureties each for the like sum of immovable property to be produced by 4.45 p.m., failing which the petitioner-Judgment-Debtor is committed to civil prison on payment of subsistence allowance by the respondent-Decree-holdcr for 30 days, and the executing Court has not given sufficient time to the petitioner to produce the sureties and that he should have been given one months time to file insolvency petition.
5. Mr. K.V. Subrahmanya Narsu appearing for the respondent-Decree-holder submits that the Court has acted in conformity with provisions of Order 21, Rule 37 of the C.P.C. and that time for furnishing sureties was granted and, as the petitioner failed to furnish the sureties, he has been committed to civil imprisonment and there is no illegality in the order passed by the Executing Court.
6. To appreciate the contention of the parties, it is necessary to peruse the Order 21 Rule 37, Rule. 40 and also Section 55, subsection 9(3) & (4) of C.P.C. which reads as under:
Order 21, Rule 37 Discretionary power to permit Judgment-debtor to show cause against detention in prison.
37(1). Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison:
Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.
(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor."
Proceedings on appearance of judgment-debtor in obedience to notice or after arrest.
40(1) When a judgment-debtor appears before the Court in obedience to a notice issued under rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison.
(2) Pending the conclusion of the inquiry under sub-rule (1) the court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required.
(3) Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of Section 51 and to the other provisions of this Code, make an order for the detention of the judgment-debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest:
Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied.
(4) A judgment-debtor released under this rule may be re-arrested.
(5) When the Court docs not make an order of detention under Sub-rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release.
Section 55, sub-section (3) and (4):
(3) Where a judgment-debtor is arrested in execution of a decree for the payment of money and brought before the Court, the Court shall inform him that he may apply to be declared an insolvent, and that he may be discharged if he has not committed any act of bad faith regarding the subject of the application and if he complies with the provisions of the law of insolvency for the time being in force.
(4) Where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court may release him from arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realised or commit him to the civil prison in execution of the decree."
7. Rule 37 (1) or Order 21 C.P.C. reflects that it is the discretionary power to permit judgment-debtor to show cause against detention in prison, and when an application is made for the execution of the decree for the payment of money by arrest and detention in civil prison of judgment-debtor, who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue notice calling him to appear before the Court on the date to be specified under the proviso to the Section and such notice is not necessary if the Court is satisfied by affidavit or otherwise, the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local jurisdiction of the Court.
8. Sub-section (1) Rule 40 of Order 21 C.P.C. deals with the proceedings on appearance of judgment-debtor in obedience to notice or after arrest. It is stated that if the judgment-debtor appears before the Court in obedience to the notice issued under Rule 37, or is brought before the Court after being arrested in execution of the decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to civil prison.
9. Sub-section (4) of Section 55 of C.P.C. states that where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court may release him from arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realised or commit him to the civil prison in execution of the decree.
10. In this case, though the petitioner had filed a memo before the executing Court that he would file an I.P., the same was not in consonance within the meaning of sub-
section (4) of Section 55 of the C.P.C., for sub-section (4) it is necessary for the judgment-debtor to furnish security to the satisfaction of the Court within one month and also file an application that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court may release him from arrest, and, if he fails to apply and to appear, the Court may either direct the security to be realised or commit him to the civil prison in execution of the decree.
11. In the instant case, the executing Court has not given sufficient time for the petitioner to produce the security for a sum of Rs.50,000/- with two sureties of immovable property and that the petitioner has also not furnished an undertaking within the meaning of Sub-section (4) of Section 55 of the C.P.C. The learned Judge granted the time till 4:45 P.M. on 13-7-1995.
12. It is stated at the bar that the petitioner was brought to the Court at 12:00 noon and the order was passed by the Court at 2.30 p.m.
13. In such circumstances, the petitioner was not afforded sufficient opportunity to produce the security, as such, I set aside the order of the learned I Additional Subordinate Judge, Visakhapatnam in E.P.No.31/94 in O.S. No. 188/91 and direct the petitioner to submit security for a sum of Rs.50,000/- with two sureties each of immovable property to the satisfaction of the Court below within three weeks from today and also to furnish an undertaking as required under sub-section (4) of Section 55 of C.P.C., and thereafter to file insolvency petition within one month, if not already filed. In default, the executing Court shall proceed in accordance with law.
The C.R.P. is accordingly allowed. No costs.