RAM MURTY GOEL Vs. UNION OF INDIA

JUDGEMENT

(1.) The instant petition filed under Article 227 of the Constitution of India calls in question the legality and propriety of the order dated 01.02.2010 (Annexure P/1) passed by District Judge Durg, in Execution Case No. 5-A/1999, whereby and whereunder the executing court directed for issuance of warrant of arrest against the judgment debtor/petitioner and fixed the matter for his presence for the purpose of sending him to the civil prison.

(2.) Brief facts of the case are: an application under Order 21 Rules 37,38 and 39 of the Code of Civil Procedure, 1908 (for short 'the Code') was filed by the respondent No. 1 for recovery of decreetal amount by sending judgment debtor to civil prison. Petitioner did not deposit Rs. 50,000/- i.e part of decreetal amount despite time granted by the court on his own request. Petitioner did not appear before the court in obedience of court's order dated 23.03.06 and 25.01.07. On 08.10.2009, petitioner's counsel intimated that petitioner is now residing in the State of Haryana, not taking interest in the matter and also not in tough with him. In these circumstances, matter was heard by the executing court and the order impugned was passed.

(3.) Shri Sanjay K Agrawal, learned counsel appearing for the petitioner assailed the order on the ground : the same is not passed in strict adherence of provisions contained in proviso to Section 51, Order 21 Rules 37, 38 and 39 and Order 21 Rule 11-A of the Code. It was further contended order impugned was passed without holding any enquiry in terms of Order 21 Rule 40 of the Code, and therefore, the impugned order is liable to set aside. In support of his contention, reliance has been placed in cases of Jolly George Varghese and another v. The Bank of Cochin, 1980 2 SCC 360, Pundlik S/o Mahadu Nazire v. Maharashtra State Farming Corporation, 1992 AIR(Bom) 48, Subhash Chandra Jain v. Central Bank of India, 1999 AIR(MP) 195), K. Vijaykumar v. N. Gururaja Rao, 2004 AIR(AP) 435) and Joseph K. Mathai v. Luckose Kurian, 1979 AIR(Ker) 235).