Karnataka High Court
Srinivas G. Shet vs M/S. Manipal Finance Corporation ... on 19 September, 1997
Equivalent citations: ILR1997KAR3238, 1998(1)KARLJ262, 1998 A I H C 4016, (1998) 1 KANT LJ 262, (1998) 2 CIVLJ 370, (1998) 1 BANKCAS 210, (1998) 1 CIVILCOURTC 480, (1998) 37 BANKLJ 413, (1999) 2 BANKCLR 514
Author: Mohamed Anwar
Bench: Mohamed Anwar
ORDER
1. Heard the arguments of learned Counsel on both sides.
2. The order dated 25-11-1993 of the Executing Court ordering issue of arrest warrant against petitioner judgment-debtor 4 is challenged by him in this revision.
3. Indisputably, the decree under execution is the money decree. It was obtained against petitioner and three other judgment-debtors by the respondent herein. The notice of arrest contemplated under sub-rule (1) of Rule 37 of Order 21 of Civil Procedure Code, was issued by the Court below and the same was returned duly served on the petitioner. When he remained absent in the execution proceeding on service of the said notice, the impugned order was passed against him.
4. The proceedings recorded in the said order sheet of the Court below in Ex. Case No. 7 of 1991, do not disclose whether deposit of the subsistence allowance stipulated in sub-rule (1) of Rule 39 of Order 21 of Civil Procedure Code by the decree-holder for issuance of arrest warrant against petitioner. Order 21, Rule 39(1), Civil Procedure Code reads:--
"39. Subsistence allowance.--(1) No judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder pays into Court such sum as the Judge thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the Court".
This material provision makes it clear that the Executing Court is first required to determine the amount of subsistence allowance to be paid by the decree-holder for arrest and production of judgment-debtor before it in execution of a money decree and that it is a condition precedent for the decree-holder to deposit the said amount into the Court before the arrest warrant is issued against the judgment-debtor. Non-compliance of this imperative requirement of law by the Court below and the decree-holder patently vitiates the order under revision.
5. In the result, the revision is allowed. The impugned order dated 25-11-1993 passed against petitioner-judgment-debtor is set aside. The Court below to proceed against the petitioner in accordance with the law from the stage of service of arrest notice on him i.e., from 11-11-1993, in the Execution Case No. 7 of 1991 on its file. The decree-holder may deposit the subsistence allowance contemplated under Order 21, Rule 39(1), Civil Procedure Code after the same is determined by the Court below.
Parties to bear their own costs.