Andhra Pradesh High Court - Amravati
Bandi Malakondaiah vs T.Srinivasulu Reddy on 14 March, 2023
HIGH COURT OF ANDHRA PRADESH :: AMARAVATHI
MAIN CASE NO: CRP No.615 of 2023
PROCEEDING SHEET
Sl. OFFICE
DATE ORDER
No. NOTE
01 14-03-2023 RC, J:
CRP No.615 of 2023
Notice before admission.
The learned counsel for the petitioner
is permitted to take out personal notice on
the respondent by registered post with
acknowledgment due and file proof of
service in the Registry.
Post on 28.03.2023.
____________
RC, J
I.A.No.1 of 2023
The learned counsel for the petitioner
submitted that the Court below erred in
issuing warrant of arrest under Rule-38 of
Order-XXI CPC, instead of posting the matter
for adducing evidence of the D.Hr. Rule 37
(2) empowers the Court for issuance of
warrant of arrest to the judgment-debtor, if
he failed to make his appearance in
obedience to the notice. Whereas, in the
instant case, the J.Dr. made his appearance
and filed his counter specifically contending
that he has no sufficient means to discharge
the decretal amount. In such an event, when
the J.Dr. was called absent on the date of
adjournment, the Court ought to have
adjourned the matter for adducing evidence
by the D.Hr., rather than issuing warrant of
arrest. Thus, the court below has failed to
follow the procedure contemplated under
Order-21, Rule-37 CPC and hence the same
is liable to be set aside. The learned counsel
for the petitioner further submitted that the
petitioner has fair and better chances of
succeeding in the revision and so also in the
Execution Petition. In the meantime, if the
petitioner is arrested and detained in civil
prison, the purpose of filing this Civil
Revision Petition would be defeated and the
personal liberty of the petitioner would be at
peril. Hence, prayed to stay all further
proceedings pursuant to the orders dated
17.02.2023 passed in E.P.No.97 of 2018 in
O.S.No.456 of 2008 on the file of the Court
of III Additional Junior Civil Judge, Nellore,
pending disposal of this Civil Revision
Petition. The learned counsel for the
petitioner relied on Jolly George Verghese
& Anr vs The Bank Of Cochin ( 1980 AIR
470).
Perused the impugned orders. The
record discloses that pursuant to the notice,
the J.Dr. entered his appearance and filed
his counter. The impugned order shows that
the J.Dr. was called absent on 17.02.2023
and the Court below having heard both sides
issued warrant of arrest under Rule 38 of
CPC. The impugned order nowhere shows
that the D.Hr. has let in any evidence
substantiating the willful neglect of the J.Dr.
in discharging the decretal amount despite
having financial capacity, particularly when
the J.Dr. has specifically pleaded in his
counter regarding his incapacity.
The submissions made by the learned
counsel and the grounds raised in this Civil
Revision Petition makes out a prima facie
point for determination in this Civil Revision
Petition in view of the judgment referred
supra. In the meantime, if the petitioner is
arrested in pursuance of the orders
impugned in this revision, the right of
personal liberty of the petitioner would be
jeopardized.
In view of the above, this Court is
inclined to grant the following interim order:
"there shall be stay of all further proceedings
pursuant to the orders dated 17.02.2023
passed in E.P.No.97 of 2018 in O.S.No.456 of
2008 on the file of the Court of the learned
III Additional Junior Civil Judge, Nellore,
including arrest of the J.Dr., for a period of
eight (08) weeks.
____________
RC, J
Note: issue C.C.by 15.03.2023.
b/o
RR
