MAYADHAR BHOI Vs. MOTI DIBYA

JUDGEMENT

(1.) This revision is directed against an order passed by the Munsif, Ist. Court, Cuttack, rejecting the objection of the judgment-debtors to the issue of Warrant of arrest under Order 21, Rule 37 of the Civil P. C.

(2.) The opposite party obtained a money decree against the petitioners and their father Uchhab, and levied execution thereof in Execution Case No, 26 of 1982. Uchhab expired during the pendency of the proceeding. No substitution was made. The execution proceeded against the petitioners. At this stage, a few relevant facts be noted. Despite service of notice the judgment-debtors did not appear. So, the decree-holder took steps for issue of notice to show cause why warrants of arrest should not be issued against the judgment debtors. The Court rejected the prayer of the decree-holder being of the view that the application was lacking in requisite averments warranting action under Order 21, Rule 37 of the Civil P. C. (for short, 'the Code'). On 8-3-1983 the decree- holder filed a fresh petition with affidavit, for reconsideration of the matter. On 18-3-1983, the Court directed issue of notice to the judgment-debtors under Order 21, Rule 37 of the Code for showing cause. On 12-5-1983, Mayadharjudgment-debtor No. 3 asked for time to file show cause. On 11-7-1983 the judgment-debtors filed their objection erroneously before the Registrar, Civil Courts. The same was received by the Court on 13-7-1983. That day the executing Court issued a letter of request to the Assistant Engineer, P. H. D., Cuttack Sadar No. II for suspension of Mayadhar who was serving under him as a Fitter Mistry, so that he could be arrested under Order 21, Rule 37 of the Code. On 18-7-1983 on the motion of Mayadhar the executing Court recalled its order dated 13-7-1983. The decree-holder then moved the executing Court for recall of the order dated 13 (18?)-7-1983 as the same had been passed under misapprehension of facts. It was pointed out that the requirements of Order 21, Rule 37 had been satisfied and notice had been served on the judgment- debtors. The executing Court, however, did not recall the order and gave a direction for disposal of the miscellaneous proceeding. By the impugned order dated 22-8-1983, he rejected the objection raised by the judgment-debtors. He held that the execution case was maintainable despite death of judgment debtor No. 1 that the moveables had been described with sufficient particularity and lastly, that it was not necessary for the Court while issuing warrants of arrest to be satisfied that the requirements of Section 51 of the Code were satisfied.

(3.) Mr. Ramakanta Mohanty, the learned counsel for the petitioners, submitted that arrest of judgment-debtor involves encroachment on his liberty, Therefore, the safeguards and pre-conditions as contained in Section 51 and the proviso to Rule 37 (1) of Order 21 of the Code should be complied with. In rare cases the provisions should be taken recourse to. He further submitted that the Court before issuing notice should be satisfied that the proviso was attracted and warrant of arrest instead of notice should issue. Mr. Ganeswar Rath, the learned counsel for the decree-holder, contended that the proceeding had not reached the stage of Rule 40 of Order 21. The requirements of Section 51 were relevant at that stage, when the Court considered the question of detention of the judgment-debtors in civil prison.