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
