SURYANARAYANA Vs. SURYANARAYANA MURTHY

JUDGEMENT

(1.) THE petitioner in the CRP is the defendant in OS No. 149 of 1999, on the file of the Principal Junior Civil Judge, Kothapet. The suit was filed by the respondent, for recovery of certain amount. It was decreed on 20.8.2004. After the decree became final, the respondent filed E.P.63 of 2004, under O.21 R.37 CPC. The executing court issued notice to the petitioner, requiring him to appear before it on 20/01/2005. Petitioner filed Vakalat and counter affidavit on 20/01/2005. On the same day, the respondent filed EA No. 325 of 2005, under sub-r.(2) of R.37 of O.21 CPC, stating that the petitioner did not appear in person, before the executing court, in response to the notice issued to him, and in that view of the matter, he must be arrested. The Trial Court allowed the E.A., and issued warrant of arrest against the petitioner, through an order passed on the same day. The petitioner challenges the said order.

(2.) SRI V. L. N. G. K. Murthy, learned counsel for the petitioner, submits that the notice served upon the petitioner in Form No.12 of Appendix E of CPC, is similar to the notice issued in a suit, and it does not contemplate the appearance of the recipient of the notice in person. Referring to various rules in O.3 and forms prescribed under various schedules of CPC, he contends that unless the court issues a notice, specifically directing the party to appear in person, filing of vakalat by the party, must be treated as compliance with the notice. He draws the attention of the Court, to Form 3 in Appendix F and other similar Forms, where the notice is required to appear in person. He has made extensive submissions, touching on the interpretation of Rules 37 and 40 of O.21 CPC.

(3.) THE only question that arises for consideration in this revision, is as to whether a judgment debtor in a decree, is under obligation to appear before the executing court in person, on receiving a notice in an application filed under R.37 of O.21 CPC, or his entering appearance, through an Advocate, would constitute compliance. While the petitioner insists that filing of vakalat must be treated as compliance, and it is not necessary that the judgment debtor must appear in person, the respondent contends the other way.