A. MANI Vs. A. CHANDRANATH

JUDGEMENT

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

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

(3.) The learned Counsel for the petitioner submits that this order is against the procedure prescribed under Order 21, Rule 40, Civil Procedure Code. According to the said provision, when the judgment-debtor appears before court, pursuant to notice under Order 21, Rule 37, Civil Procedure Code "the court shall proceed to hear the decree- holder and take all such evidence as may be produced by him in support of his application for execution and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison." The contention of the learned Counsel for the petitioner is that the execution court has erred in not conforming to this provision by proceeding to hear the decree-holder and take such evidence as may be produced by him and then give the petitioner an opportunity of showing cause why he should not be committed to civil prison, and in ordering straightaway arrest simply stating that by way of affidavit of the decree-holder, the means of the judgment- debtor have been proved.