KASHMIRI LAL Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) IN the suit by bank, a decree of more than Rs. 9,00,000/- was passed. Decree was passed some where in 1975. Same very year, in execution of the decree, two properties belonging to the judgment debtors were attached. Judgment-debtors raised certain objections. One of the objections was that the house cannot be sold in execution of the decree as the same is main residential house. Bank finding obstruction on the part of judgment- debtors in realisation of the amount, made an application for detention of the judgment-debtors in civil prison. In reply to the said application, judgment- debtors stated that some of the judgment debtors are ladies and thus they cannot be detained in civil' prison. They also raised other objections like the one that one, of the judgment debtors/mortgagors had already died when the property was, equitably mortgaged with the bank. The Executing Court allowed the application of the bank and thus passed an order of detention against all the judgment- debtors except the ladies. The order of Executing Court is being impugned here in this revision by one of the judgment-debtors.

(2.) HAVING heard the learned counsel for the parties at length, I am of the view that the order qua the petitioner cannot be sustained. Order XXI Rule 40 of the Code of Civil Procedure pre scribes as to how the Court has to proceed after the judgment- debtors have put in appearance in responce to notice under Order XXI Rule 37 of the Civil Procedure Code. It provides that on appearance, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to civil prison. Proviso to Section 51 of the Code of Civil Procedure provides that after giving an opportunity of hearing to the judgment-debtors of showing cause why he should not be committed to prison, the Court is required to record reasons in writing for its satisfaction of existence of grounds mentioned therein and those are :

(3.) IT appears from the order of the Court that the aforesaid provision of Order XXI Rule 37 of Civil Procedure Code and Section 51 of the said Code were not brought to the notice of the Court at the time of decision of the application, and for that matter, the trial Court has not given any finding with regard to existence of any of the conditions specified in proviso to Section 51 of the Code of Civil Procedure. In the absence of such a finding, the arrest and detention of the judgment-debtor cannot be ordered.