Sri. Huchappa S/O Ningappa ... vs Smt. Shanta W/O Srishalappa ...
2022 Latest Caselaw 3771 Kant

                                       WP NO.100800/2022


                         :1:


           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

        DATED THIS THE 5TH DAY OF MARCH, 2022
                       BEFORE
       THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ

        WRIT PETITION No.100800/2022 (GM-CPC)

BETWEEN:

SRI. HUCHAPPA
S/O NINGAPPA HIREKASANAKANDI @ KOLLOLLI
AGE: 52 YEARS, OCC: AGRIL
R/O. HIREKASANAKANDI,
TQ.DIST. KOPPAL - 583-231
                                       ...PETITIONER
(BY SRI. NEELENDRA D. GUNDE, ADVOCATE)

AND:

SMT. SHANTA, W/O. SRISHALAPPA SOBARD
AGE: 6 YEARS, OCCP: AGRIL
R/O KOPPAL NOW RESIDING AT BELGAUM
THOUGH HER GPA HOLDER
SRI. MAHESH, S/O RUDRAPPA MITTALKOD,
AGE: 63 YEARS, OCCP: AGRIL
WARD NO.29, HUDCO COLONY, KOPPAL
NEAT AXIS BANK, KOPPAL - 583 231.
WARD NO.29, HUDCO COLONY
KOPPAL, NEAR AXIS BANK-583231
                                         ...RESPONDENT


    THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
THIS WP IS FILED PRAYING TO ISSUE WRIT, ORDER OR
DIRECTION IN THE NATURE OF CERTIORARI QUASHING THE
ORDER DATED 14/12/2021 PASSED BY SENIOR CIVIL JUDGE
                                              WP NO.100800/2022


                               :2:


IN E.P.NO-68/2018 THEREBY ALLOWING I.A NO.1 FILED
UNDER ORDER 21 RULE 37 OF CPC VIDE ANNEXURE-A.

     THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

1. The petitioner is before this Court seeking for the

following reliefs:

a) Call for the relevant records;

b) Issue writ, order or direction in the nature of certiorari quashing the order dated 14/12/2021 passed by Senior Civil Judge in E.P.No-68/2018

Rule 37 of CPC vide Annexure-A.

c) Pass such other order/orders as this Hon'ble Court deems fit in the facts and circumstances of the case, in the interests of justice.

2. The grievance of the petitioner is that, notice on I.A.1

filed in E.P.No.68/2018, under Order XXI Rule 37 of the

CPC, has been issued to the petitioner and the same is

in violation of the proviso to the said Order XXI Rule 37

of CPC and as such it requires to be quashed.

3. Order XXI Rule 37 of the Code of Civil Procedure, 1908,

reads as under:

Rule 37 Order XXI of Code of Civil Procedure 1908 "Discretionary power to permit judgment debtor to show cause against detention in prison"

WP NO.100800/2022

(1) Notwithstanding 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 shall, 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 :

Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.

(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

4. A perusal of the same indicates that, the Court on an

application filed for execution of decree for payment of

money by arrest and detention in the civil prison of the

judgment-debtor may, instead of issuing a warrant for

arrest, issue a notice calling upon the judgment-debtor

to appear before the Court and in emergent

circumstances may also issue arrest warrant in the

event of the judgment-debtor likely to abscond from the

local limits of the Execution Court.

5. In the present case, vide the impugned order dated

14.12.2021, only notice on I.A.1 filed under Order XXI WP NO.100800/2022

Rule 37 of the CPC has been issued and there is no

arrest warrant which has been issued. It is for the

petitioner to appear before the Execution Court and

show cause as to why he should not be arrested. The

said order dated 14.12.2021 does not, therefore, suffer

from any legal infirmity and as such, I am of the

considered opinion that the petition lacks merit.

6. Therefore, the petition stands dismissed. Liberty is

reserved to the petitioner to show cause why he should

not be arrested in answer to the notice issued on I.A.1.

Sd/-

JUDGE gab