PUNA MAHTON Vs. EMPEROR

JUDGEMENT

(1.) This is petition for the revision of an order by the Sessions Judge of Patna summarily dismissing an appeal from a First Class Magistrate convicting the petitioners in the following circumstances. A decree had been obtained in the civil Court against the petitioner Puna Mahton and the successful judgment creditor proceeded to execute it. The executing Court purporting to act under Order 21, Rule 37, Civil P.C., took an unusual course. That rule is as follows: (1) Not with standing anything in these rules where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application the Court may instead of issuing a warrant for his arrest issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison. (2) Where appearance is not made in obedience to the notice the Court shall if the decree-holder so requires issue a warrant for arrest of the judgment-debtor.

(2.) Under this rule it is clear that the Court, on the application of the judgment- creditor for execution may choose between two alternative courses. It may (a) issue a notice upon the debtor to show cause why he should not be committed to prison or (b) it may issue a warrant for his arrest. Moreover under para. (2) if the first course be taken and the debtor does not appear and also if the decree-holder so requires a warrant may be issued for the arrest of the debtor.

(3.) In this case the Court issued to two peons both a notice to the debtor to appear and also a warrant for his arrest. It was clearly intended and the peons also so understood their instructions that the debtor should first be served with the notice and if he should intimate in any way that he had no intention of complying with it that the peons should then make use of warrant of arrest. In my opinion the Court in so acting took a wrong course. The service of a notice by a peon gives to the debtor an opportunity within the time fixed by the notice to appear before the Court. He may possibly intimate his intention not to appear but on the other hand he may within the time fixed by the notice repent of his action and decide to appear. Furthermore there is the possibility that even if he should appear the decree-holder may repent of his severity and may not ask the Court to effect the arrest of the debtor. It must be borne in mind that the Court has jurisdiction to adopt either course permitted by the rule but having decided to issue a notice it should not have deprived the judgment-debtor of the opportunity which the notice affords him. In other words the Court exercised its discretion to issue the warrant of arrest in an entirely unjudicial manner.