PANNA LAL Vs. S B S AUTOMOBILES

JUDGEMENT

(1.) THIS Revision Petition has been preferred under Section 115, Code of Civil Procedure (for short 'the Code') against the order dated 28.4.97 whereby the learned Addl. District Judge, Jodhpur in Execution case No. 36/96 ordered for issuance of a warrant of arrest in exercise of powers under Order 21 Rule 37(2) of the Code.

(2.) BRIEFLY stated, the facts relevant for disposal of the present petition, as also alleged by the petitioner are that the petitioner (JD) is resident of Merta City, He is carrying on business at Merta City in the name and under the title of M/s Merta Motors, Merta City, as a sole proprietor. Non -petitioner (DH) is resident of Jodhpur and he is also carrying on business of automobiles under the name and title of M/s S.B.S. Automobiles, Chopasani Road, Jodhpur and Mangal Singh is its sole Proprietor. The decree -holder (non -petitioner) instituted a Civil Original Suit No. 121/94 (No. 79/88) in the court of District Judge, Jodhpur who, in turn assigned the same to the court of Addl. District Judge, Jodhpur who, after a full -fledged trial, passed a decree for principal amount of Rs. 10030/ - along with interest, on 3.6.95. Since the petitioner (JD) did not satisfy the decree and, as a result, the decree -holder filed an application under Order 21, Rule 11 of the Code for realisation of Principal and interest aggregating to Rs. 25525/ - and also requested that the amount may be realised by way of attachment of movable and immovable property. Alternatively, it was also requested that the judgment -debtor may be detained in civil prison by way of initiation of proceedings under Order 21 Rule 37 of the Code. An affidavit in support thereof was also sworn by Bhagwat Singh Proprietor of the decree -holder -firm.

(3.) BEING aggrieved, the present petition has been moved on the ground that the executing court, in the aforesaid circumstances, had had no territorial jurisdiction to have embarked upon issuance of warrant of arrest in execution proceedings and, besides, the executing court committed an illegality and serious irregularity while overlooking the mandatory provisions of Sections 38, 39 and 51 as well as Order 21, Rule 37 of the Code and, instead, it was incumbent on the executing court to have transferred execution application for execution to the District Judge, Merta and, in the circumstances, it was also further alleged that the learned trial Judge has also flouted the dictum laid down in Jolly George v. The Bank of Cochin : [1980]2SCR913 .