Madhusudan Prabhakar Chitale vs Trimbak Vyankatesh Joshi on 20 January, 1960
In the abovesaid view, I am fortified by the observations of Mudholkar, J. (as he then was) in Madhusudan Prabhakar v. Trimbak Vyankatesh, AIR 1961 Bom 23. It was observed therein that under O. 21, R 37(1) the Court has a power to issue a warrant for the arrest of the person against whom the execution is sought. In lieu of issue of such a warrant the court has power to direct the issue of such a notice. But even in answer to such a notice the judgment-debtor must appear in Court in person and his appearance through counsel is not enough. Where the judgment-debtor is present on the date originally mentioned in the notice and actually files his written statement on that day but the matter is not taken up by the Court on that day but on a subsequent day, it is obligatory upon him to remain present on that date also. Where a court issues a warrant either under sub-r. (1) or under sub-r. (2) of R. 37, it does not do so with the intention of committing the petition against whom the warrant is issued to prison. It only issues such a warrant to secure the presence of such a person in court. Therefore, in such a case the provisions of S. 51 or O. 21, R. 40 are not applicable. It is further observed that the provisions of the later rule would apply only at a later stage that is, after the judgment debtor appears in Court, in pursuance either of a notice or warrant. I am in respectful agreement with the above observations.