A MANI Vs. A CHANDRANATH

JUDGEMENT

(1.) THIS civil revision petition by the judgment-debtor-respondent in R.E.P.No.172 1990 on the file of the Subordinate Judge's Court, Krishnagiri, is against the order 2.12.1991 in the said petition for his arrest.

(2.) ADMITTEDLY, pursuant to notice under O.21, Rule 37, C.P.C. the judgment-debtor before the executing court and filed his counter to the said execution petition for his and detention in prison. No doubt the petitioner was paying several amounts towards decree amount on different dates, on which the execution petition was posted. But, abovesaid date 2.12.1991, he did not appear before court and he did not also pay a Rs.6,000 which he was directed to pay in the preceding hearing date. Therefore, he ex parte by the impugned order and the execution court below, observing ordered arrest by 31.12.1991.

(3.) BUT, O.21, Rule 40(2), C.P.C., inter alia only says pending conclusion of enquiry under sub-rule (1), the court may, in its discretion, order the judgment-debtor to be detained in custody of an officer of court. This sub-rule (2) of Rule 40 does not at all provide for order arrest. However, it has to be seen whether in the light of what is laid down P.G.R.Padayachi v. Mayavaram Financial Corporation, (1973)2 M.L.J. 93: A.I.R. 1974 Mad. (D.B.), the impugned order could be sustained under O.21, Rule 37(2), C.P.C. O.21, Rule (1) and (2) run as follows: "37. Discretionary power to permit judgment-debtor to show cause against detention prison: (1) Notwithstanding anything in these rules, where an application is for the execution decree for the payment of money by the arrest and detention in the civil prison of judgment-debtor who is liable to be arrested in pursu ance of the application, the court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the court on a day to be specified in the notice and show cause why he should not committed to the civil prison: Provided that such notice shall not be necessary if the court is satisfied, by affidavit, otherwise that, with the object or effect of delaying the execution of the decree, judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the court. (2) Where appearance is not made in obedience to the notice, the court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor". The abovesaid Division Bench case is also similar to the present one. There executing court has notice under 0.21, Rule 37(1), C.P.C. to the judgment-debtor appeared before the court and filed a counter. However, the judgment-debtor offered the decree amount and the executing court gave him time for payment. On the adjourned date, no payment was made and that is why the executing court passed the order of which was challenged before the Division Bench. In that context, the Division Bench the order of arrest, inter alia observing as follows: "This order can only be under 0.21, Rule 37(2). The judgment-debtor had no doubt in court in obedience to the notice sent under Rule 37(1), but on the adjourned defaulted. As already noticed though he had originally offered to pay the decree amount, had failed to pay the same and there is nothing to show that the judgment-debtor was present in the court on the date on which the order now in appeal was passed. Therefore, even though the judgment-debtor had originally appeared in court in obedience to the issued under Rule 37(1) on the date on which the order of arrest was passed, it deemed that the judgment-debtor had disobeyed the notice." Therefore, what the Division Bench has held is that even though the non-appearance judgment-debtor is on an adjourned date of hearing after his original appearance pursuant the notice under 0.21, Rule 37(1), C.P.C, it must be deemed that the judgment- disobeyed the said original notice, by his such non-appearance in a subsequent hearing the present case also even though originally the petitioner-judgment-debtor appeared court and filed counter, he did not appear on the abovesaid date 2.12.1991 and the below passed the abovesaid Order of arrest on the ground that the decree-holder proved that the judgment-debtor had means to pay the decree-amount. Therefore, it be said that the impugned order was without jurisdiction, as it could fall under 0.21, (2), C.P.C. Apart from the abovesaid Division Bench decision in Madhusudan v. A.I.R. 1961 Born. 23 also it was held so. The relevant observation therein is as follows: "It may be that the petitioner was present on the date originally mentioned in the notice actually filed his written statement on that day but the matter was not taken up by the on that day but on a subsequent day. Therefore, it was obligatory upon the petitioner remain present on that date. By his failure to do so he brought upon himself consequences provided by sub-rule (2) of Rule 37 of 0.21." In a similar situation in K.N.Gangappa v. A.M.Subramanya Mudaliar 100 L.W. 306, of arrest was upheld by this court, though the said decision does not particularly 0.21, Rule 37(2), C.P.C. The learned counsel for the petitioner could not cite any contra on this point. At any rate, in view of the fact that the above referred P.G.R.Padayachi v. Mayavaram Financial Corporation, (1973)2 M.L.J. 93: A.I.R. 1974 (D.B.), is a Division Bench judgment, I am bound by it in so far as the aforesaid view it.