THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
C.R.P.Nos.2803 & 2789 OF 2017
COMMON ORDER:
These civil revision petitions under Section 115 CPC are
directed against the common order dated 07.04.2017 in E.A.Nos.
25 & 26 of 2017 in E.P.No.111 of 2015, on the file of the
VIII-Additional Senior Civil Judge, Ranga Reddy District,
wherein the said applications filed by the petitioner herein under
Order XXI Rule 40 CPC to recall the warrant of arrest
by setting aside the order dated 13.12.2016 and under Order XXI
Rule 26 CPC to stay all further proceedings, including the arrest of
the petitioner herein, were dismissed.
2. Heard the learned counsel for the petitioner and learned
counsel for the respondents. Perused the record.
3. The revision petitioner is the judgment debtor and the respondents are the decree holders.
4. The respondents herein filed the suit O.S.No.53 of 2013 for eviction and arrears of rent against the petitioner herein and 2 the said suit was decreed by judgment dated 19.11.2014 directing the petitioner herein to deliver physical and vacant possession of the suit schedule property and also to pay arrears of rent to a tune of Rs.2,85,000/- to respondent No.1 herein. The respondents filed E.P.No.111 of 2015 under Order XXI Rule 11 CPC for a direction to the petitioner to pay the amount of Rs.13,52,500/-, failing which to send him to the civil prison. While so, the petitioner filed E.A.No.25 of 2017 to recall the warrant of arrest by setting aside the order dated 13.12.2016 whereunder due to non-appearance of the petitioner, arrest warrant was issued and also another application in E.A.No.26 of 2017 to stay all further proceedings. In both the applications, the petitioner stated that he had vacated the EP schedule premises and handed over the keys to the respondents. The petitioner stated that to eke out the livelihood, he is working in V.K.A Industries with meager income to clear the debts and to run his small family, it is difficult for him to pay the decretal amount. The petitioner stated that he does not have any means to pay the decretal amount to the respondents and he may be given an opportunity to contest the case by setting aside 3 the order by recalling warrant issued against him. The respondents filed counter denying the allegations in the applications and stated that the petitioner started business in the name and style V.K.A Industries Steel Shop, situated at Saroornagar, Ranga Reddy District with huge investment and he is deliberately not paying the decretal amount only to drag on the proceedings on one pretext or the other and to escape from the liability. The trial court, having considered the contentions of both parties, by common order dated 07.04.2017, dismissed both the applications. Challenging the said common order, the present revision petitions are filed.
5. The relevant provision relating to the execution of the decree is Section 51 C.P.C. The perusal of the proviso to Section 51 would show that it makes obligatory on the part of the executing Court to give, an opportunity to the judgment-debtor to show cause as to why he should not be committed to prison before passing such an order. Thus, it applies not for ordering arrest of the judgment- debtor but only for committing him to prison. Section 51 proviso is as follows-
"Provided that where the decree is for the payment of money, execution by detention in prison shall 4 not be ordered unless, after giving the judgment- debtor an opportunity of showing cause why he should not be committed to prison."
6. The above Section 51 provides arrest and detention in prison as one of the modes of executing a decree. As per the terms of the proviso, the decree-holder has necessarily to prove : (1) that the judgment-holder has, or has had since the date of the decree, the means to pay the decree amount or some substantial part thereof and (2) that the judgment-debtor refuses or neglects or has refused or neglected to pay the same. This proof should be adduced before ever the judgment-debtor could be committed to prison. This could be done only after the judgment-debtor had been given an opportunity to show cause against such detention and after the executing Court recorded its reasons in support of its order.
7. Thus, the provision of the Code makes a distinction between an order of arrest and an order of detention, in other words, such a procedure is contemplated as per the proviso to Section 51 only before ordering the detention of the judgment-debtor in civil prison.
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8. Order XXI, Rule 40 prescribes the procedure on the judgment-debtor either appearing in Court in obedience to the notice or is brought before Court after being arrested in execution of the decree for payment of money. This provision would say that when the judgment-debtor so appears or is brought before Court, 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. Thus, it is quite obvious that this provision is only in consonance with the proviso to Section 51 which prescribes that the judgment-debtor; shall be given an opportunity to show cause before he is committed to civil prison. In other words, it can be safely held that there is nothing in the Code which would indicate or compels the executing Court either to give an opportunity to the judgment-debtor or the decree-holder to adduce evidence to have a full-fledged enquiry and record its reasons in writing before even it passes an order of arrest against the judgment-debtor. 6
9. After the above exposition of law relating to the issue involved herein, in the instant case, the execution petition has been filed under Order XXI Rule 11 CPC and the same was registered in E.P.No.111 of 2015 and the executing court issued a notice to the petitioner herein under Rule 37 CPC before issuing arrest warrant under Rule 38 CPC. The executing court in the order impugned observed that the docket order clearly shows that before issuing arrest warrant, notice was issued to the petitioner and he made appearance and that the evidence of P.W.1 (decree holder) i.e., respondent herein was also recorded. Subsequently, as the petitioner failed to appear in the main execution proceedings, on 13.12.2016, arrest warrant was issued against him. Since the petitioner contested the main execution petition and due to his subsequent failure to appear after examining the decree holder as P.W.1, the executing court was constrained to issue arrest warrant under Order XXI Rule 40 CPC. The executing court had rightly issued a notice under Rule 37 CPC and in obedience to the notice, the judgment debtor i.e., petitioner herein appeared and the respondent-decree holder was examined as P.W.1 and 7 subsequently, the judgment debtor failed to appear and the executing court was compelled to issue arrest warrant. It shows that the executing court had started conducting enquiry after giving opportunity to the petitioner-judgment debtor to adduce evidence wherein the respondent-decree holder was examined as P.W.1, but as the petitioner again failed to appear before the court, arrest warrant was issued and the prescribed enquiry under Rule 40 was not concluded. However, the executing court had not conducted enquiry and arrest warrant came to be issued by the executing court due to absence of the judgment debtor. The arrest warrant was issued by the executing court for conducting enquiry under Order XXI Rule 40 CPC and as such, it can be concluded that the order was issued only under XXI Rule 38 CPC.
10. In the light of the aforesaid discussion, I am of the considered view that since the arrest warrant was issued by the executing court without conducting enquiry, as provided under Rule 40 and without giving a finding with regard to the means of the judgment debtor i.e., petitioner herein, the same is not one without jurisdiction, as the order of arrest was only under Order 8 XXI Rule 38 CPC. The question, regarding means to pay and other opportunity to adduce evidence of both parties before the court, would arise only when the final order is passed under Order XXI Rule 40 CPC and after the petitioner is arrested and brought before the court. Hence, I do not find any illegality or irregularity in the impugned common order. Therefore, the petitioner is liable to be arrested and brought before the executing court to enable the court to take further action for recovering the decretal amount.
11. Consequently, both the civil revision petitions are dismissed. There shall be no order as to costs.
12. Pending miscellaneous petitions, if any, shall stand closed.
_______________________ A.SANTHOSH REDDY, J 22.11.2022 Lrkm