M V RAJU Vs. MANAGER INDIAN OVERSEAS BANK

JUDGEMENT

(1.) The judgment debtor in E. P. No. 65/2003 in O. S. No. 35/2000 on the file of the Sub Court, Pathanamthitta is the petitioner in this Writ Petition. The respondent bank filed the suit for realisation of money. The suit was decreed. The bank filed E. P. No. 65/2003 for realisation of an amount of Rs. 1,79,253/-. One of the modes of execution sought for was arrest and detention of the petitioner in civil prison. The petitioner did not appear before the executing court on receipt of the notice issued to him under O.21 R.37. The decree holder filed an affidavit. Warrant of arrest was issued against the petitioner on 22-3-2005. The petitioner was arrested and brought before the executing court on 21-10-2005. On that day the petitioner paid an amount of Rs. 5,000/- and E. P. was posted to 25-10-2005. On that day the petitioner paid another amount of Rs. 3,000/- and the E. P. was adjourned to 13-12-2005. The petitioner filed an objection on 21-10-2005 contending that he has no means to pay the debt. The petitioner filed E. A. No. 251/2005 before the executing court on 19-11-2005 praying that the executing court may consider the issue of means of the judgment debtor before further proceeding with the execution proceedings. He also filed E. A. No. 255/2005 to review the order by which the arrest warrant was ordered against him. That application was not accompanied by a petition to condone the delay. The learned Sub Judge dismissed E. A. No. 251/2005, the petition in which the prayer made was to consider the plea of his no means holding that "since arrest warrant had already been issued against the judgment debtor after considering the means of the judgment debtor, the application cannot be considered at this stage. Hence the same is dismissed". The review petition was also dismissed on the ground that it was highly belated. Challenging those two orders, this Writ Petition was filed.

(2.) The learned counsel appearing for the respondent raised a preliminary objection that no Writ Petition is maintainable against an order passed by the court below ordering arrest warrant. It is argued that the orders impugned in this Writ Petition are revisable. The main challenge in this Writ Petition is directed against the order dated 25-11-2005 dismissing E. A. No. 251/2005. The prayer in that E. A. was to consider the issue of the means of judgment debtor before further proceeding with execution proceedings. Even if that application was allowed the proceedings will not be terminated. So no revision is maintainable against that order. It is true that the order passed in E. A. 255/2005 is revisable since that order is a final order. It is well settled position of law that the existence of alternate remedy alone is not a ground to dismiss the Writ Petition. This Writ Petition is pending from 13-12-2005 onwards. It is to be noted that Civil Revision Petition is also to be filed before this Court.

(3.) In this case the judgment debtor was brought before the court under arrest in pursuance of a warrant issued under O.21 R.37(2) of Civil Procedure Code. In such cases there is a mandatory duty cast upon the court to direct the decree holder to prove the means of the judgment debtor and also the circumstances specified under proviso to S.51(c) of the Civil Procedure Code before ordering detention of the judgment debtor in civil prison. In spite of a petition filed by the judgment debtor to conduct an enquiry the executing court held that there is no need to conduct such an enquiry. It is well settled position of law that when an inferior court or Tribunal refuses to exercise the jurisdiction vested in it or acts without jurisdiction this Court can interfere and set aside the order under Art.227 of the Constitution of India. So, I overrule the objection raised by the learned counsel appearing for the respondent that no Writ Petition is maintainable against the orders impugned in this case.