M.V. RAJU Vs. MANAGER, INDIAN OVERSEAS BANK

JUDGEMENT

(1.) THE judgment debtor in E.P. No. 65 of 2003 in O.S. No. 35 of 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 the money. The suit was decreed. The bank filed E.P. No. 65 of 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 Order XXI, Rule 37. The decree holder filed an affidavit. Warrant of arrest was issued against the petitioner on March 22, 2005. The petitioner was arrested and brought before the executing court on October 21, 2005. On that day the petitioner paid an amount of Rs. 5,000 and E.P. was posted to October 25, 2005. On that day the petitioner paid another amount of Rs. 3,000 and the E.P. was adjourned to December 13, 2005. The petitioner filed an objection on October 21, 2005, contending that he has no means to pay the debt. The petitioner filed E.A. No. 251 of 2005, before the executing court on November 19, 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 of 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 of 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.) 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 November 25, 2005, dismissing E.A. No. 251 of 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. No. 255 of 2005 is revisable since that order is a final order. It is a 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 December 13, 2005, onwards. It is to be noted that civil revision petition is also to be filed before this Court.

(3.) A perusal of the records shows that though notice was ordered against the petitioner he did not appear before the executing court. The decree holder filed an affidavit stating that the judgment debtor has got means and based on that statement, the executing court ordered arrest warrant. The petitioner was brought before the court under arrest. When such a person is brought before the court under arrest it has to follow the procedure prescribed under Order XXI, Rule 40 of the Civil Procedure Code. The mere fact that the court below has ordered warrant of arrest relying on an affidavit filed by the decree holder alone is not a ground to hold that thereafter the court need not consider the plea of no means as held by the executing court. Order XXI, Rule 40 is a mandatory provision. Rule 40 of Order XXI prescribes the procedure to be followed when the judgment debtor appears before the court in obedience to a notice under Rule 37 or brought under arrest. Order XXI, Rule 40 reads as follows: Rule 40. Proceedings on appearance of judgment debtor in obedience to a notice or after arrest. - -