JEEVAN SINGH Vs. JAGDISH

JUDGEMENT

(1.) The petitioner is a judgment debtor. Against him, a money decree has been passed. The judgment debtor filed an application for execution of money decree by arresting the petitioner/judgment debtor under Order 21 Rule 37 of CPC. A show cause notice was issued to the petitioner and the petitioner filed reply to the show cause and submitted that the petitioner is a below poverty line person and he is not in a position to pay the decretal amount.

(2.) It is argued that the Executing Court has committed an error by not holding an enquiry in regard to the capacity of the petitioner to pay the decretal amount. It is submitted that an enquiry under Order 21 Rule 40 of CPC has to be conducted subject to provisions of Sec. 51 of CPC. Without conducting any enquiry in regard to capacity of payment of the petitioner to the decretal amount, by the impugned order, warrant of arrest for civil imprisonment has been issued. In support of his submission, he has placed reliance on the judgment passed by High Court of Ernakulam in OP (C) No. 122 of 2022 decided on 20th day of January 2022 (Dileepkumar vs. Sriram Transport Finance Co. Ltd. and Anr.

(3.) Issue notice to the respondent(s) on payment of PF by registered AD with due acknowledgment within seven working days, failing which, the petition shall stand dismissed without reference to the Court. Till the next date of hearing, the operation of the impugned order regarding sending the petitioner to Civil Jail dtd. 8/9/2023 shall remain stayed subject to hearing the other side. CC as per rules.