KAKARLA BULLI RAJU Vs. NEERUKONDA VENKATA LAKSHMI NARASAYAMMA

JUDGEMENT

(1.) This revision petition is filed against an order in E.A. 1099 of 1983 in E.P. 489 of 1981 in O.S. 597 of 78. The petitioner herein is a third party to the proceedings.

(2.) The facts of the case are that the petitioner herein stood surety for respondent No.2 the judgment debtor. The first respondent is the decree holder. He filed O.S.597 of 1978 on the file of Principal District Munsif', Kovvur for recovery of the money and the suit was decreed on 2-2-79 for a sum of Rs.5036.40 and Rs.578.80. Thereafter, the respondent No.1 filed E.P. 489 of 1981 for realisation of decretal amount under Order 21 Rule 37 read with Section 55 C.P.C and for arrest of respondent No.2, judgment- debtor. In that E.P. vakalat was filed on 17-4-82 for the judgment-debtor and on 26-4-82 a sum of Rs. 150/- was paid by the judgment-debtor and part satisfaction was recorded and time was given for payment of the balance amount upto 5-5-82. On 5-5-82 when the case was called the judgment-debtor was absent and therefore an order of arrest of judgment-debtor was issued. The case was posted on 6-7-82. On 6-7-82 the judgment-debtor was produced and an order was passed committing the judgment- debtor to Civil Prison. Then E.A. 625 of 1982 was filed by the judgment-debtor on the same day and a sum of Rs.1,000/- was paid. The judgment-debtor was released on third party surety ie., the present petitioner. The petitioner herein executed a surety bond undertaking to produce the judgment-debtor on 26-7-82. Therefore the Court passed the following order:-

(3.) The learned counsel for the petitioner has submitted that the order of the lower Court is not correct and legal, the lower Court failed to see that the original order of arrest passed against the respondent No.2, judgment-debtor on 5- 7-82 itself is bad and therefore all consequential proceedings of executing a bond by the petitioner herein and the order of the Court below forfeiting the bond are not legal and therefore there is no liability on the petitiioner herein. It is further contended that before passing an order of arrest the Executing Court must follow the procedure laid down under Order 21 Rule 37 to Order 21 Rule 40 read with Section 51 C.P.C. and while passing the order on 6-7-82 the lower Court has not followed the above procedure and therefore the entire proceedings are void and consequentially the impugned order is liable to be set aside. The learned counsel submitted five points for consideration of this Court which are as follows: