MADHUSUDAN PRABHAKAR CHITALE Vs. TRIMBAK VYANKATESH JOSHI

JUDGEMENT

(1.) THIS is an application by the decree-holder for the revision of an order passed in execution by the Small Cause Court at Poona, directing the arrest of the petitioner under Order XXI Rule 37 Sub rule 2, C. p. c.

(2.) THE opponent obtained a decree for Rs. 417-8-0 against the petitioner on 4-8-1955. As the petitioner did not pay the decretal amount the opponent filed an application for execution of the decree. By that application the opponent sought the arrest and detention of the petitioner in a civil jail. After the application was made the court issued a notice to the petitioner under Order XXI Rule 37 Sub-rule (1), C. P. C. The petitioner attended the court in obedience to the notice and filed his written statement. The matter was then adjourned and the petitioner failed to attend on the date of the adjourned hearing. According to Mr. Pendse, the petitioner's counsel put in his appearance on his behalf in court on the date of the adjourned hearing. As the petitioner was not present in person the court ordered the issue of a warrant against him under Order 21 Rule 37 Sub-rule (2 ). Mr. Pendsc contends that the court had no jurisdiction to make an order of this kind for two reasons. In the first place, according to him, the petitioner was not bound to be present in person and the appearance on his behalf by his counsel was sufficient compliance with the requirements of law. The second ground urged by him is that under the law as it Stands today the burden is upon the decree-holder to satisfy the court that it is necessary to commit the judgment-debtor to prison and that, therefore, it is not necessary for the judgment-debtor to show cause why he should not be committed to prison, until and unless the decree-holder makes out a prima facie case for the committal of the judgment-debtor to prison,

(3.) IT is true that Section 51 of the C. P. C. as well as Order XXI Rule 40 have been amended in the year 1956 but the question here is not whether the petitioner can be committed to prison or not but whether the court has jurisdiction under Sub-rule (2) Rule 37 Order XXI to order the issue of a warrant for his arrest because he was not present in court on the adjourned date of hearing. No doubt under Order III Rule I, C. P. C. , a party who is required to appear before the court, may either appear in person or through a recognised agent or a Pleader. But that rule itself lays down that where it is expressly provided otherwise by any law, a party will have to appear in person. Now, if one reads the provisions of Sub-rule (1), Rule 37 of Order XXI it will be clear that the Code contemplates the personal presence of the judgment-debtor because under that sub-rule the court has also a power to issue a warrant for the arrest of the person against whom the execution is sought. In lieu of issue of such a warrant the court has power to direct the issue of a notice. But even in answer to such a notice the judgment-debtor must appear in court in person and his appearance through a counsel is not enough. This is made further clear by the form of notice which is used in a case of this kind. Form No. 12 in Appendix E of the First Schedule to the C. P. C. contains these words,