KANBAIYALAL AGRAWAL Vs. AMRIT DEO ARYA

JUDGEMENT

(1.) This appeal arises out of a proceeding under section 47 of the Code of Civil Procedure (hereinafter referred to as 'the Code').

(2.) In this appeal the judgment-debtor (appellant) has challenged the validity of the order dated 1.7.1976 passed by the executing court. In the execution proceeding, the plaintiffs filed an application for executing the decree by issuing warrant of arrest on the judgment-debtor. In other words, the plaintiffs-decree-holder filed an application under Order XXI, rule 37 of the Code. The judgment-debtor appeared and filed show cause. On 1.7.1976, the executing court considered the show cause of the judgment-debtor and heard the counsel of both parties on the point of issue of warrant of arrest under Order XXI, rule 37 of the Code. After hearing the parties the executing court issued warrant of arrest against the judgment-debtor appellant. Hence the judgment-debtor preferred the appeal before this court.

(3.) The short point for consideration in this appeal is whether the executing court followed the procedures laid down under Order XXI, rule 37 as well as under Order XXI, rule 40 of the Code before issuing warrant of arrest ? In my opinion the answer is in negative. When an application is filed under Order XXI, rule 37 of the Code, the executing court is required to issue a show cause notice on the judgment-debtor as to why he should not be committed to the civil prison. After the judgment-debtor files show cause, the executing court will require the decree-holder to lead evidence in support of his application for execution under Order XXI, rule 40 of the Code. After taking evidence as may be produced by the decree-holder, the executing court shall give another show cause notice to the judgment-debtor as to why he should not be committed to the civil prison. It is, therefore, clear that the executing court is required to issue two show cause notices to the judgment-debtor. The first show cause notice shall be issued by the executing court when the decree-holder files an application under Order XXI, rule 37 of the Code and the second show cause notice will be issued upon the judgment-debtor when the decree-holder has led evidence in support of his application. In the present case, the plaintiffs decree-holders were not directed to lead evidence in support of their application. The court also did not give the second show cause notice on the judgment debtor as required under Order XXI rule 40 of the Code. Hence I hold that the executing court passed order on 1.7.1976 without following the procedures laid down under Order XXI, rule 37 as well as under Order XXI, rule 40 of the Code and as such I set aside the order of the executing court, dated 1.7.1976. If the executing court wants to issue warrant of arrest against the judgment-debtor, the court is directed to follow the procedure as mentioned above. The appeal is allowed. Parties bear their own costs. Appeal allowed.