INDO KASHMIR ARTS EMPORIUM Vs. ANJUM MUSHTAQ

JUDGEMENT

(1.) Decree dated 23-08-1987, of ejectment and recovery of arrears of rent, of District Judge Srinagar is put to execution in E.P. No. 17 of 97 on the file of District Judge. So far as ejectment part is concerned, decree, stands executed.However, the execution of the decreee, for recovery of outstanding rent, the decretal amount is in process. During pendency of the execution petition, decree holder moved an application on 31-5-2000, for arrest and detention in prison of the two partners of the firm, the judgment- debtors. The executing court of District Judge, Srinagar, on the very day ordered arrest and detention in Civil prison of these judgment debtors and for the purpose issued warrant" of arrest. This order of 31-5-2000 is under challenge in this revision petition.

(2.) The Impugned order is challenged in main on the ground that the order is mechanical, in so far as on the very day and date of 31-5-2000 when application for arrest and detention of judgment debtors in civil prison was moved, the court without any notice and without following the requirements of law, passed the order, on just askance for, to arrest and detain the Judgment debtors and for the purpose issued warrant. Neither the Judgment debtors were served notice as required under law nor executing court applied its mind to the facts and circumstances of the case to find out if the case was fit for issuing a warrant to lodge the Judgment debtors in civil prison to realize the decretal amount Even the liability of the judgment debtors for payment was not determined in so far as the judgment debtors had raised and placed on record objection that some payment had already been made.

(3.) Mr. G.A. Lone, the learned counsel for the revision petitioner has reiterated the above grounds in his submission before the Court. He stressed that the impugned order suffers from material irregularity and error of jurisdiction in so far as neither any notice was served on judgment debtors nor circumstances existed to merit dispensation of notice and issuing of warrant for arrest and detention. The case has not been addressed on legal and factual counts, resulting in breach of provisions of Section 51 and Order 21 Rule 37 of C P C.