Andhra HC (Pre-Telangana)
S. Ismail And Anr. vs Agraseni Chit Funds (P) Ltd. And Ors. on 19 July, 2004
Equivalent citations: AIR2005AP33, 2004(5)ALD138, 2004(5)ALT212, AIR 2005 ANDHRA PRADESH 33, 2006 (1) AKAR (NOC) 40 (AP), (2004) 23 ALLINDCAS 82 (AP), (2006) 1 CURCC 10, (2005) 1 CIVILCOURTC 518, (2004) 5 ANDHLD 138, (2004) 5 ANDH LT 212, (2005) 1 BANKCLR 829, (2005) 1 CIVLJ 619
ORDER D.S.R. Varma, J.
1. Heard both sides.
2. This civil revision petition is directed against the order, dated 16-3-2004, passed by the Additional Senior Civil Judge, Kurnool, allowing the petition in E.P. No.111 of 2003 in OS No. 198 of 2002 filed under Order XXI Rule 37 of the Code of Civil Procedure for recovery of decretal amount by way of arrest and detention of the judgment-debtors, 1, 4 and 5.
3. The Petitioners 1 and 2 are the judgment-debtors 4 and 5, the Respondent No.1 is the decree-holder and the Respondent Nos.2 to 4 are the judgment-debtors 1 to 3 respectively.
4. For the sake of convenience, the parties will be referred to as arrayed in the E.P.
5. The undisputed facts are that the judgment-debtors 4 and 5 were the guarantors to the principle debtor. The decree-holder, after obtaining a decree, filed the said E.P., seeking arrest of the principal-debtor including the judgment-debtors 4 and 5. The principal-debtor filed a counter-affidavit stating that he is a salaried person and his salary was already under attachment in E.P. No.816 of 2002 in OS.No.914 of 1999. The contention of the judgment-debtors 2 and 3 in the said E.P. was that the claim against them was given up inasmuch as they were outside the jurisdiction of the Executing Court. So, virtually, the judgment-debtor No.1 is the Principal Debtor, and the judgment-debtors 4 and 5 were the contesting parties in the E.P., pending before the Executing Court. The petitioners herein, who are judgment-debtors 4 and 5, remained ex parte. Upon their remaining ex parte, the present impugned order came to be passed by the Court below.
6. While not acceding to the contention of the judgment-debtor No.1 that he is a salaried man and his salary was under attachment in some other E.P., the Court below ordered as under:
"So though this E.P. is for recovery of money by way of arrest of R1, I order attachment of his salary"
7. At the threshold, I am of the considered view that this observations, insofar as the judgment-debtor No.1 is concerned, made by the Executing Court is wholly unwarranted and uncalled for, for the simple reason that the Court below was totally oblivious of the fact that the said E.P., was filed under Order XXI, Rule 37 of the Code of Civil Procedure, in which event only the question of arrest of judgment-debtor would and should fall for consideration. Further more, it is to be noticed that the above observation runs totally contrary to the final order passed by the Court below. In other words, the said observation is totally discordant to the other observations made by the Court below in the subsequent portion of the impugned order, which would be dealt with later.
8. The Court below further observed that:
"So judgment-debtors 4 and 5 with salary of Rs. 10,000/- each per month possessing vast movable and immovable properties cannot be said penniless or have no capacity to pay substantial portion of the debt after 28-1-2003. The Decree-holder therefore, established means of R-4 and R-5. I hence, order their arrest and production of this Court." (Emphasis laid)
9. In this connection, it is essential to look into the ingredients of Order-XXI Rule 37 of the CPC.
10. Order XXI Rule 37(1) of the CPC, envisages that the Executing Court shall, instead of issuing a warrant for the arrest of the judgment-debtors issue a notice calling upon him to appear before the Court on a date fixed in the notice and require him to show-cause as to why he should not be committed to the civil prison.
11. Sub-rule (2) of Rule 37 of the CPC, reads as under:
"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."
12. From the above, it is clear that as per Sub-rule (1) of Rule 37 of the CPC, it is obligatory on the part of the Court to issue a notice instead of ordering arrest straightaway and call upon the judgment-debtor to explain as to why he should not be sent to the civil prison.
13. Sub-rule (2) of Rule 37 of the CPC, enables the Court to pass an order of arrest to procure the presence of the judgment-debtor, if he does not appear before the Court, as stated in the notice, in obedience to the order of the Court passed under Sub-rule (1) of Rule 37 of the CPC.
14. After the presence of the judgment-debtors is secured by the Court, by exercising its jurisdiction conferred under Sub-rule (2) of Rule 37 of the CPC, the question that arises is what is the procedure to be followed by the Executing Court.
15. Rule 40 of the CPC, is the direct answer to this question, which reads as under:
"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 given the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison."
16. From a fair reading of the provisions of Rule 40 of CPC, it is clear that Executing Court has to follow the procedure prescribed under the said rule. In order words, Rule 40 of the CPC, is not only procedural but also mandatory in nature and confers certain powers upon the executing Court during the pendency of an enquiry to be conducted.
17. The expression "enquiry" employed in Rule 40 of the CPC, should mean that an enquiry with regard to defence, if any, taken by the judgment-debtors and also to enquiry into the averments made by the decree holders, before the judgment-debtor is sent to the civil prison.
18. Merely because the decree-holder makes an application under Order XXI, Rule 37 of CPC, it is not for the Executing Court to automatically order arrest of the judgment-debtor. The procedure prescribed under Rule 40 of the CPC, mandates that an enquiry has to be conducted, before the Executing Court passes and order sending the judgment-debtor to the civil prison.
19. Further, the expression "arrest" employed in Sub-rule (2) of Order XXXVII of the CPC, is different from an order passed by the Court sending the judgment-debtor to the civil prison. The latter is the final order after the completion of the enquiry under Rule 40 of the CPC, and the former was only an order in order to secure the presence of the judgment-debtor by force by ordering his arrest.
20. As already pointed out, in the instant case, from a reading of the impugned order, it is clear that no such enquiry was conducted by the executing Court. On the other hand, as already noticed, the above two extracts of the order of the Court below are not only in-coherent but also unwarranted and uncalled for and were made without jurisdiction. Therefore, those two extracts from the impugned order have got to be ignored and expunged from the order.
21. However, it is to be noticed that the final order of the executing Court is that "I hence order the arrest and production of the judgment-debtor into the Court." Only to this extent, the impugned order of the Court below holds good. The other reasoning and observations need not be attached. In other words, this is the only sentence in the impugned order of the Court below, which is in accordance with law. The rest is wholly unjustified and uncalled for.
22. As already discussed and pointed out in the aforesaid paragraph of this order, when once the Court below ordered production of the judgment-debtor by way of arrest, the imperative procedure to be followed is under Rule 40 of the CPC. Unless and until the procedure under Rule 40 of the CPC, is followed, there cannot be an order of arrest for the purpose of sending the judgment-debtors to the civil prison.
23. For the afore-mentioned reasons, the impugned order of the Court below is liable to be set aside and is accordingly set aside.
24. In the result, the civil revision petition is allowed, at the stage of admission, with the following directions :
"The Court below is directed to secure the presence of the petitioners/judgment-debtors 4 and 5, as ordered by it by way of arrest and conduct an enquiry under Order XXI, Rule 40 of the CPC, and pass final orders in accordance with law basing on the evidence on record in the enquiry conducted in this regard."
25. However, there shall be no order as to costs.