Applying the parameters of the afore said provision in
the instant case, the petitioner/judgment debtor, in the present
case, had appeared before the learned Judge in obedience to
notice issued under Rule 37 of Order 21 of the Code of Civil
Procedure, but although it was incumbent upon the learned Judge
to proceed to hear the decree-holder and to take all such
evidence as may be produced by him in support of his application
for execution, and although it was incumbent upon the learned
Judge
then to give judgment debtor an opportunity of showing
cause why he should not be committed to civil prison, the learned
Judge did not follow the said procedure of inquiry before passing
the impugned order dated 28.4.2000. Moreover, upon conclusion
of inquiry, it was obligatory upon the learned Judge to follow the
procedure prescribed in sub-rule (3) and more particularly proviso
thereof of Rule 40 of Order 21 of the Code of Civil Procedure, but
the learned Judge did not comply with the said provisions prior to
passing the impugned order on 28.4.2000. Besides that, it was
expected from the learned Judge to follow the procedure as
prescribed in amended sub-rule (6) of Rule 40 of Order 21 of the
Code of Civil Procedure, but same has not been followed in letter
and spirit while passing the impugned order dated 28.4.2000.
In the circumstances, it is amply clear that the
impugned order passed by the learned Civil Judge, Senior
Division, Ahmednagar on Exh.24 in Special Darkhast No. 64 of
1990 on 28.4.2000 is illegal, improper and erroneous and same
deserves to be quashed
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CIVIL REVISION APPLICATION NO. 525 OF 2000
Satish s/o Ramchandra Shahapurkar,
VERSUS
Gorakshnath Madhavrao Pund,
Coram : Shrihari P. Davare, J.
Citation;2009(6)ALLMR660,2009(6)BomCR850,
2010(1)AIRBomR591
Perused and heard Shri V.S.Bedre, learned counsel for
served.
the petitioner. Nobody appeared for sole respondent although
This Civil Revision Application emerges out of the order
passed
by
the
learned
Joint
Civil
Judge,
Senior
Division,
Ahmednagar on Exh.24 in Special Darkhast NO. 64 of 1990 on
petitioner in civil prison.
28.4.2000, thereby allowing the said application to detain the
3
Briefly stated, the petitioner herein is original judgment
debtor/defendant and the respondent herein is the decree
holder/plaintiff and the respondent filed Regular Civil Suit No. 626
of 1986 for recovery of the amount of Rs.21,925/- and the said
suit
was decreed on 23.4.1990 and the petitioner herein was
directed to pay the said amount along with the interest at the rate
of six per cent per annum to the respondent herein.
It is the contention of the petitioners
respondent
that the
herein filed execution petition i.e. Special Darkhast
No. 64 of 1990 for the recovery of decretal amount. In the said
Darkhast, after return of warrant of attachment of movables, on
the request of respondent , an order regarding issuance of notice
under Order 21 Rule 37 of the Code of Civil Procedure was
passed. Thereafter, the respondent preferred an application dated
6.11.1999 and requested to reissue the said notice since it was
returned unserved. The learned Judge passed order thereon on
2.12.1999 and thereby directed the respondent/decree holder to
produce documents that judgment debtor
is having means but
avoiding to pay.
Thereafter, the respondent preferred further application
on 7.1.2000 contending that the petitioner herein was not having
movable or immovable property and further contending that he
had preferred an application for warrant of arrest and notice
thereof under Order 21 Rule 37 of the Code of Civil Procedure was
issued to the judgment debtor/petitioner, but same was returned
unserved
and hence, prayed for reissuance of the said notice.
Accordingly, the learned Judge passed an order on the said
application on 21.1.2000 and directed to reissue notice as per the
provisions of Order 21 Rule 37 of the Code of Civil Procedure on
payment of process fee.
Thereafter, it is the further contention of the petitioner
that the respondent preferred another application on 25.4.2000
contending that the petitioner herein has not paid the decretal
amount and he has means to pay the said amount and although
the notice under Order 21 Rule 37 of the Code of Civil Procedure
was served upon the petitioner, he avoided to make the payment
of decretal amount to decree holder and, therefore, requested for
issuance of arrest warrant to detain the petitioner in civil prison.
The petitioner submits that he filed the say to the said application
on 28.4.2000. However, without considering the said say and
without following the due procedure prescribed under Section 55
of the Code of Civil Procedure, and more particularly, without
following the procedure as prescribed under Order 21 Rule 40 of
the Code of Civil Procedure, the learned Judge granted the said
application on 28.4.2000. Being aggrieved and dissatisfied by the
said order, the petitioner herein has challenged the correctness
and legality of the said order in the present Civil Revision
Application.
At the out set, it is seen that the respondent herein has
made contradictory statements in the application dated 7.1.2000
and in the application dated 25.4.2000, since in the application
dated 7.1.2000 the respondent has contended that the petitioner
herein has no movable or immovable property; whereas in the
application dated 25.4.2000 the respondent has stated that the
petitioner has means to pay the said decretal amount and,
therefore, prayed for arrest warrant against the petitioner herein.
Moreover, it is also significant
to note that on the application
Judge
directed
the
respondent/decree
dated 6.11.1999 preferred by the respondent herein, the learned
holder
to
produce
documents to show that judgment debtor was having means to
pay but avoiding to pay, vide order dated 2.12.1999. However, it
appears that no compliance of the said order has been made by
the respondent/decree holder and without the said compliance,
ig
order came to be passed on the application dated 25.4.2000 on
28.4.2000 granting the said application for issuance of arrest
warrant against the petitioner herein.
Apart from that, there is no dispute that notice under
Order 21 Rule 37 of the Code of Civil Procedure was served upon
the petitioner herein and in pursuance of the said notice the
petitioner herein appeared before the learned Judge and filed his
say on 28.4.2000 and resisted the application preferred by the
respondent herein on 25.4.2000 for the arrest warrant, but
apparently it appears that the learned Judge has neither
considered the say dated 28.4.2000 filed by the petitioner herein
nor followed the procedure prescribed under Order 21 Rule 40 of
the Code of Civil Procedure, before passing the order on
28.4.2000, which certainly resulted into miscarriage of justice.
In the said context, coming to the application dated
25.4.2000 itself, it is seen that even the said application was not
signed by the plaintiff/decree holder and no verification was made
thereunder
and it also appears that the plaintiff/decree holder
has not filed any affidavit in support of the said application, but
the said application has been simply signed by the advocate for
the respondent/decree holder/plaintiff.
Moreover, the following
order was passed on the said application by the learned Judge :-
“ Issue prayer on P.F. And
subsistence charges as per rules.
depositing
Sd/-
28.4.2000. “
Thus, although directions issued by the learned Judge on
2.12.1999 to the decree holder to produce documents that
judgment debtor is having means to pay but avoiding to pay, the
said directions apparently were not complied with, but still the
learned Judge proceeded to pass the afore said order on
application dated 25.4.2000 on 28.4.2000,
apparently in the
cryptic manner, without following the procedure prescribed under
Order 21 Rule 40 of the Code of Civil Procedure. The provision of
Order 21 Rule 40 of the Code of Civil Procedure is reproduced
hereunder :-
ORDER XXI
.......... ...........
.............
“
7
...........
40. 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 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 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. “
(Bombay) :- In Order XXI, rule 40, after the
existing sub-rule (5), add the following as new
sub-rules (6), (7) and (8) :-
(6)
When a judgment-debtor is ordered
to be detained in the custody of an officer of a
Court under sub-rule (2) or the proviso to sub-
rule (3) above, the Court may direct the
decree-holder to deposit such amount as,
having regard to the specified or probable
length of detention, will provide :-
(a)
for the subsistence of the judgment-
debtor at the rate to which he is entitled under
the scale fixed under section 57, and
(b)
for the payment to the officer of the
Court in whose custody the judgment-debtor is
placed or such fees (including lodging charges)
in respect thereof as the Court may by order fix
:-
Provided :-
(i)
that the subsistence allowance and
the fees payable to the officer of the Court
shall not be recovered for more than one
month at a time, and
(ii)
that the Court may from time to time
require the decree-holder to deposit such
further sums as it deems necessary.
(7)
If a decree-holder fails to deposit any
sum as required under sub-rule (6) above, the
Court may disallow the application and direct
the release of the judgment-debtor.
(8)
Sums disbursed by the decree-holder
under sub-rule (6) shall be deemed to be costs
in the suit :
9
Provided that the judgment-debtor
shall not be detained in the civil prison or
arrested on account of any sum so disbursed. “
10
Applying the parameters of the afore said provision in
the instant case, the petitioner/judgment debtor, in the present
case, had appeared before the learned Judge in obedience to
notice issued under Rule 37 of Order 21 of the Code of Civil
Procedure, but although it was incumbent upon the learned Judge
to proceed to hear the decree-holder and to take all such
evidence as may be produced by him in support of his application
for execution, and although it was incumbent upon the learned
Judge
then to give judgment debtor an opportunity of showing
cause why he should not be committed to civil prison, the learned
Judge did not follow the said procedure of inquiry before passing
the impugned order dated 28.4.2000. Moreover, upon conclusion
of inquiry, it was obligatory upon the learned Judge to follow the
procedure prescribed in sub-rule (3) and more particularly proviso
thereof of Rule 40 of Order 21 of the Code of Civil Procedure, but
the learned Judge did not comply with the said provisions prior to
passing the impugned order on 28.4.2000. Besides that, it was
expected from the learned Judge to follow the procedure as
prescribed in amended sub-rule (6) of Rule 40 of Order 21 of the
Code of Civil Procedure, but same has not been followed in letter
and spirit while passing the impugned order dated 28.4.2000.
In the circumstances, it is amply clear that the
impugned order passed by the learned Civil Judge, Senior
Division, Ahmednagar on Exh.24 in Special Darkhast No. 64 of
1990 on 28.4.2000 is illegal, improper and erroneous and same
deserves to be quashed and set aside by allowing the present
Civil Revision Application in the interest of justice imposing costs
12
of present Civil Revision Application upon the respondent.
In the result, present Civil Revision Application is
allowed in terms of prayer clause ‘B’ thereof with costs and the
impugned order passed by the learned Civil Judge, Senior
Division, Ahmednagar
on Exh.24 in Special Darkhast No. 64 of
1990 on 28.4.2000 stands quashed and set aside.
(SHRIHARI P.DAVARE, J.)
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