Andhra HC (Pre-Telangana)
Goparaju Venkata Satya Suryanarayana vs Tallapragada Naga Venkata ... on 4 April, 2006
Equivalent citations: AIR2006AP278, 2006(4)ALD98, 2006(3)ALT694, AIR 2006 ANDHRA PRADESH 278, 2006 (5) ALL LJ NOC 1164, 2006 (3) AJHAR (NOC) 981 (AP), 2006 (5) AKAR (NOC) 636 (AP), 2006 A I H C (NOC) 333 (AP), (2006) 45 ALLINDCAS 146 (AP), (2006) 4 CIVILCOURTC 219, (2006) 4 ANDHLD 98
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The petitioner in the C.P.P. is the defendant in O.S.No.149 of 1999, on the file of the Principal Junior Civil Judge, Kothapet. The suit was filed by the respondent, for recovery of certain amount. It was decreed on 20-8-2004. After the decree became final, the respondent filed E.P.63 of 2004, under Order XXI Rule 37 C.P.C. The executing Court issued notice to the petitioner, requiring him to appear before it on 20-1 -2005.
2. Petitioner filed Vakalat and counter affidavit on 20-1-2005. On the same day, the respondent filed E.A.No.325 of 2005, under Sub-rule (2) of Rule 37 of Order XXI C.P.C., stating that the petitioner did not appear in person, before the executing court, in response to the notice issued to him, and in that view of the matter, he must be arrested. The trial court allowed the E.A., and issued warrant of arrest against the petitioner, through an order passed on the same day. The petitioner challenges the said order.
3. Sri V.LN.G.K. Murthy, learned Counsel for the petitioner, submits that the notice served upon the petitioner in Form No. 12 of Appendix-E of C.P.C., is similar to the notice issued in a suit, and it does not contemplate the appearance of the recipient of the notice in person. Referring to various rules in Order III and forms prescribed under various schedules of C.P.C., he contends that unless the court issues a notice, specifically directing the party to appear in person, filing of vakalat by the party, must be treated as compliance with the notice. He draws the attention of the Court, to Form-3 in Appendix-F and other similar Forms, where the notice is required to appear in person.... He has made extensive submissions, touching on the interpretation of Rules 37 and 40 of Order XXI C.P.C.
4. Sri T.V.S. Prabhakar Rao, learned Counsel for the respondent, submits that the very purpose of issuing notice in the proceedings initiated under Rule 37 of Order XXI C.P.C., is to require the physical appearance of the judgment-debtor. He contends that if the purport of Rules 37 and 40, is taken into account, it becomes evident that the judgment-debtor must appear before the Court, on receiving a notice issued in such proceedings.
5. The only question that arises for consideration in this revision, is as to whether a judgment-debtor in a decree, is under obligation to appear before the executing court in person, on receiving a notice in an application filed under Rule 37 of Order XXI C.P.C., or his entering appearance, through an Advocate, would constitute compliance. While the petitioner insists that filing of vakalat must be treated as compliance, and it is not necessary that the judgment-debtor must appear in person, the respondent contends the other way.
6. Before any discussion is undertaken, it is better to have an idea about Rule 37 of Order XXI C.P.C. It reads as under:
Discretionary power to permit judgment debtor to show cause against detention in prison:
(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 a 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.
From a reading of this provision, it becomes evident that whenever an application is filed under Rule 37, the executing court has to adopt one of the two courses. If it is satisfied on the basis of the affidavit filed by the decree holder, or otherwise, that the judgment debtor is likely to abscond from, or leave the local limits of the jurisdiction of the court, it can straight away issue warrant of arrest, for his production in the Court, for onward committal to civil prison. Where, however, the court is not satisfied as to existence of such circumstances, it can, instead of issuing a warrant of arrest, issue a notice, calling upon the judgment debtor to "appear before the court on a day to be specified" and explain as to why he "should not be committed to civil prison". The expression "instead of issuing a warrant for his arrest", occurring in Sub-rule (1) signifies the predominant object underlying Rule 37. Such an object, at the stage of issuing notice under Sub-rule (1), or a warrant of arrest, under proviso to that rule, is to ensure the physical presence of the judgment debtor, before the executing court. The only factor that guides the option of the court, in choosing the above courses, is the likelihood or otherwise, of the judgment debtor leaving or absconding the local limits of the jurisdiction of the Court. If the Court is satisfied, as to the possibility of the judgment debtor leaving or absconding, it can procure his presence, by issuing a warrant of arrest. In the absence of such satisfaction, the court ensures the presence of the judgment debtor before it, with a semblance of respect, by requiring him to offer explanation, as to why he shall not be committed to civil prison.
7. It is true that the word "appear" occurs in many forms prescribed under various appendices to Schedule-l C.P.C., and in certain forms, such as one in Form-3 of Appendix-B, the heading of the summons itself is the one for "appear in person". It is also true that Rule 1 of Order III C.P.C. enables a party to the suit, to appear, through recognized agent or pleader, in response to any summons, except where the personal appearance is specifically directed. However, it must be noted that the very purpose of initiating proceedings under Rule 37 of Order XXI C.P.C., is to seek arrest of the person. It is not as if such an exercise undertaken is a first step in the adjudicatory process. By the time such proceedings are initiated, the lis between the parties stands already adjudicated, and the mutual obligation of the parties under the decree, assumes finality. The occasion to issue notice under Sub-rule (1) of Rule 37 of Order XXI C.P.C., arises in the context of specific allegation made by the decree holder that despite holding adequate means, the judgment-debtor has avoided his responsibility under the decree.
8. Even if there is any possibility to contend that the expression "appear before the court" connotes the representation through an authorized agent or pleader, the same becomes clarified, on a perusal of Rule 40 of Order XXI C.P.C. The said provision reads as under:
Proceedings on appearance of judgment debtor in obedience to notice or after arrest:
(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 o} 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 does 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.
From a reading of Sub-rule (1) of Rule 40, it becomes clear that appearance of the judgment-debtor in obedience to notice, or his having been brought before the Court after being arrested, are treated as permissible modes of ensuring the presence of the judgment-debtor in the court, for the purpose of enabling the decree holder, to adduce evidence in support of his claim. The further aspect, which becomes evident, is that the decree holder must adduce evidence, in the presence of the judgment-debtor, so that he can be given an opportunity to show cause as to why he should not be committed to civil prison.
9. Further, Sub-rule (2) of Rule 40 provides for certain measures, where the inquiry contemplated under Sub-rule (1) is not concluded on the same day, on which the judgment-debtor appears, or is produced before the executing court. The court is conferred with the discretion, either to detain the judgment-debtor in the custody of an officer of the court, or to release him on furnishing security, to the satisfaction, for his "appearance when required". This provision does not maintain any distinction between the circumstances under which the judgment-debtor was present before the Court, i.e. whether he appeared in response to a notice, or was produced on being arrested. The expression "for his appearance" assumes significance. The whole exercise becomes impossible, unless the judgment-debtor is physically present. A person, who is released from the custody on furnishing security, has, invariably to appear in person, on the next specified date.
10. The purport of this discussion is to drive home the point that the word "appearance" employed in Sub-rule (1) of Rule 37 and sub-rule (2) of Rule 40, or for that matter, proviso to Sub-rule (3) of Rule 40, connotes the physical appearance of the judgment-debtor, and not the appearance through recognized agent or pleader. In Madhusudan v. Trimbak the Bombay High Court held that whenever a notice is issued to the judgment debtor under Rule 37 of Order XXI, he must appear in person, and his appearance through agent or counsel, does not constitute compliance. To the same effect is the judgment of Punjab & Haryana High Court in Bhagat Singh v. Gurmukh Singh
11. The term "appearance" is capable of having different connotations, when it is employed in different contexts. For instance, where the summons or the notice issued to a party, at the initial stage, in civil proceedings, requires his appearance, it can certainly be through a recognized agent or counsel, as provided for under Sub-rule (1) of Rule 1 of Order III C.P.C. However, where the appearance is required at subsequent stages, the emphasis is to require the physical presence of the party. This view gains strength from the fact that the appearance through an agent or counsel already exists. Appearance in the same form for the second time becomes superfluous. The judgment of the Supreme Court in M. Laxmi and Company v. A.R. Deshpande provides a valuable guidance in this regard.
12. The appellant therein initiated eviction proceedings against the respondent, under Chapter-VII of the Presidency Small Cause Courts Act, 1882, as amended by the Maharashtra Amendment Act 41 of 1963. The respondent entered appearance through counsel and delivered his defence. The matter has passed through several stages. Section 42-A of the Act enabled the occupant of a premises, who receives any notice of eviction, to appear at the time appointed, within the meaning of Bombay Rents, Hotel and Lodging House Rates Control Act 1947, and seek protection of that Act. The question relating to his entitlement shall be decided, as a preliminary issue, if the land owner opposes the plea of the tenant. Section 42-A read as under:
42A: Procedure where occupant contests as a lawful tenant, etc.--
(1) If in any application pending in the Small Cause Court immediately before the date of the commencement of the Presidency Small Cause Courts (Maharashtra Amendment) Act, 1963 (Mah.XLI of 1963) or made to it on or after such date, the occupant appears at the time appointed within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. LVII of 1947) and in consequence whereof he is entitled to the protection of that Act, and if such claim is not admitted by the applicant, then notwithstanding anything contained in that Act, the question shall be decided by the Small Cause Court as a preliminary issue.
(2) An appeal against the decision on this issue shall lie to a bench of Two Judges of the Small Cause Court.
(3) Every appeal under Sub-section (2) shall be made within thirty days from the date of the decision appealed against:
Provided that, in computing the period of limitation prescribed by this Sub-section the provisions contained in Sections 4, 5 and 12 of the Indian Limitation Act, 1908 (IX of 1908) as far as may be, apply.
(4) No further appeal shall lie against any decision in appeal under subsection (2).
13. Though the respondent in that case filed his defence, the trial court did not frame any preliminary issue, as provided for under Section 42-A, on the ground that he did not appear in person, as provided for under Section 42-A of the Act. In the revision preferred before the Bombay High Court, against the order of eviction, it was held that the trial Court was under obligation to frame a preliminary issue and decide it whether or not, the respondent appeared on the day fixed for framing of issues. In the appeal preferred to the Supreme Court, two questions that arose for consideration in the matter, were framed as under:
First, whether the word 'appears' occurring in Section 42-A means appearance of the party in person or through someone at the date of the hearing. Secondly, whether the Small Cause Court is required to frame an issue as to whether the occupant is a tenant within the meaning of the Bombay Act of 1947 and is entitled to protection of that Act, and decide it as a preliminary issue, whether or not the contesting party appears before the Court at the date of the hearing.
After discussing the scheme of the Act at length, the Supreme Court held as under:
Section 42-A speaks of tenancy within the meaning of the 1947 Act and protection under that Act. One has to claim the benefit and protection under the Act will become an issue at the hearing of the case. The word "appearance" cannot be equated with the filing of the written statement. After pleadings are complete the Court appoints a date for hearing. It is at the hearing that the occupant will assert his tenancy and claim protection against eviction. It is then that the Court will enquire whether an issue is to be struck between the applicant on the one hand and the occupant on the other by reason of denial by the applicant of the occupant's claim. It is, therefore, clear from the provisions of the statute that the word "appear" in Section 42-A of the 1882 Act means appearance at the date of the hearing.
When such is the interpretation placed by the Supreme Court, in respect of appearance, at a subsequent stage, in the original proceedings itself, there hardly exists any doubt as to the purport of the word "appearance" in relation to the proceedings initiated for arrest of the judgment debtor.
14. Reverting to the facts of the case, it is not in dispute that the petitioner herein did not appear in person on 20-1-2005. On noticing this, the respondent filed an application, for arrest of the judgment debtor. The executing court, in turn, issued warrant of arrest. Since the petitioner did not appear before the executing court, in person, on the appointed date, the only consequence that could have followed was, issuance of warrant of arrest. That is what exactly, the executing court has done. Therefore, this Court does not find any basis to interfere with the order under revision.
15. The C.R.P. is accordingly dismissed.
16. Since the absence of the petitioner on 20-1-2005 was on the basis of his understanding of the provision, it is directed that if the petitioner appears before the executing court on 10-4-2006, the petitioner shall not be subjected to arrest or detention.
17. There shall be no order as to costs.