JOSEPH K MATHAI Vs. LUCKOSE KURIAN

JUDGEMENT

(1.) The judgment debtor in a decree for realisation of money is the revision petitioner. Execution was sought for realisation of the decree amount both by sale of the petitioner's properties and by arrest and detention of the petitioner after notice under O.21 R.37 CPC. The petitioner did not appear in court on issue of notice. On 28 5 74, the Court entered a finding on the basis of an affidavit filed by the decree holder respondent that the petitioner is possessed of means to pay the decree debt and that he neglected to pay the same. The court issued warrant for the arrest of the petitioner. The petitioner moved for withdrawal of the arrest warrant and filed objection to the execution petition. The case was being adjourned for enquiry. While so, the petitioner paid some amount towards the decree debt. For some time, there was stay of execution under Act 30 of 1975. After the promulgation of Ordinance 1 of 1977, an application was filed by the petitioner for relief under that Ordinance. It was, however, dismissed. The decree holder thereafter moved for the issue of warrant. The court passed the following order on 9th September, 1977.

(2.) The Court appears to have been labouring under a confusion regarding the procedure to be followed in connection with execution of a decree for money by arrest and detention of the judgment debtor. I notice the same confusion in a number of cases that have come up before me recently.

(3.) S.51 of the Code of Civil Procedure empowers the Court to order execution of a decree by arrest and detention in prison of the judgment debtor in appropriate cases for the periods specified in S.58 CPC No order for detention of the judgment debtor in civil prison is to be made where the total amount of the decree does not exceed five hundred rupees. (See S.58 (1A). Proviso to S.51 directs that execution by detention in prison shall not be ordered unless, the judgment debtor is given an opportunity of showing cause why he should not be committed to prison. Ordinarily in cases where the decree holder wants execution by arrest and detention of the judgment debtor, he would file an affidavit showing that the conditions exist for ordering such execution. O.21 R.11-A of the Code as amended in 1976 makes it obligatory to file an affidavit showing the grounds of arrest, along with the application for execution. O.21 R.37 gives the discretion to the Court to issue a notice instead of a warrant of arrest, calling upon the judgment debtor to appear on a specified date and show cause why he should not be committed to the civil prison. Where appearance is not made in obedience to the notice, the court, at the instance of the decree holder would issue a warrant for the arrest of the judgment debtor. The warrant would contain a direction that the judgment debtor be brought before Court unless in the meanwhile the amount which has been ordered to pay with interest and costs is paid by him. If the judgment debtor appears in obedience to notice or is brought before Court on arrest, the Court should conduct an enquiry as detailed in O.21, R.40. The Court should hear the decree holder and take all such evidence as may be produced by him in support of the application for execution. O.21 R.40(1) does not dispense with taking of evidence even in cases where an affidavit has been filed under O.21, R.11-A. If any witnesses are examined, the judgment debtor should be allowed to cross examine them. Thereafter, the Court should give an opportunity to the judgment debtor to show cause why he should not be committed to a civil prison. Upon the conclusion of the enquiry, the Court may make an order for the detention of the judgment debtor and may cause him to be arrested if he is not already under arrest. Under proviso to S.51, the Court, before ordering detention in prison should record its reasons in writing and should be satisfied