Karnataka High Court
D. Raghavendra S/O Dhanjaya vs M/S Margadarsi Chits (Karnataka) Pvt. ... on 27 May, 2024
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NC: 2024:KHC-K:3302
WP No. 200673 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
WRIT PETITION NO.200673 OF 2021 (GM-CPC)
BETWEEN:
D. RAGHAVENDRA S/O DHANJAYA
AGE: 45 YEARS, OCC: LEGAL PRACTITIONER,
NO.1-3-938, DHANAJAYA MOTORS,
GAUSHALA ROAD, SIYA TALAB,
RAICHUR - 584101.
...PETITIONER
(BY SRI. SACHIN M. MAHAJAN, ADVOCATE)
AND:
1. M/S MARGADARSI CHITS
(KARNATAKA) PVT. LTD.,
Digitally signed
by RAMESH 1ST FLOOR, ANAND TOWERS,
MATHAPATI GANDHI CHOWK,
Location: HIGH RAICHUR-584101.
COURT OF
KARNATAKA
2. MR.JETHALAL G. PATEL
S/O DEVASI PATEL, OCC. BUSINESS,
C/O MAHALAKSHMI INDUSTRIES FACTORY,
PLOT NO.13, ROAD NO.17, IDA,
NACHARAM, HYDERABAD-76,
R/O MODI APARTMENTS PVT. LTD.,
"C" BLOCK, 1ST FLOOR, D NO.110,
OPP. NOMA KALYAN MANTAPAM
NACHARAM, MALLAPUR,
HYDERABAD-76.
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WP No. 200673 of 2021
3. MR. NAVEEN PATEL
S/O JETHALAL PATEL, OCC. BUSINESS,
C/O MAHALAKSHMI INDUSTRIES FACTORY,
PLOT NO.13, ROAD NO.17, IDA,
NACHARAM HYDERABAD-76,
R/O MODI APARTMENTS PVT. LTD.,
"C" BLOCK, 1ST FLOOR, D NO.110,
OPP. NOMA KALYAN MANTAPAM
NACHARAM, MALLAPUR,
HYDERABAD-76.
4. MR. GIRI GOPAL S/O RANGAPPA
AGE: 47 YEARS, OCC:BUSINESS,
C/O M/S SRINIVAS MOTORS,
SINDHANOOR ROAD, MANVI,
DIST. RAICHUR-585123.
R/O H.NO. 12-4-70/1 AND 12-4-70/2,
NEAR SRI AMBA BHAVANI TEMPLE,
CHANDRABAND ROAD, RAICHUR-584101.
...RESPONDENTS
(BY SMT. CHANDRAKALA, ADVOCATE FOR R1;
NOTICE TO R2 TO R4 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO SSUE AN
APPROPRIATE WRIT OR ORDER OR DIRECTION AND THEREBY
SET ASIDE THE IMPUGNED ORDER DATED 02.02.2021 PASSED
BY THE LEARNED II ADDITIONAL CIVIL JUDGE AND JMFC-IV AT
RAICHUR IN EP NO.107/2016 VIDE ANNEXURE-C, BY
ALLOWING THE WRIT PETITION.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY THE COURT MADE THE FOLLOWING:
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WP No. 200673 of 2021
ORDER
The petitioner is aggrieved by the order dated
02.02.2021 passed in E.P.No.107/2016 by the II
Additional Civil Judge and JMFC-IV at Raichur.
2. The factual matrix of the case is that the
respondent No.1 has filed an Execution Petition under
Order 21 Rule 11 of CPC read with Section 71(a) of the
Chits Funds Act, 1982 before the II Additional Civil Judge
and JMFC-IV, Raichur in Execution Petition No.107/2016.
Thereafter, the petitioner herein / judgment debtor No.4
appeared before the executing Court. Thereafter on
30.01.2019, respondent No.1 i.e., the decree holder filed
I.A.No.IV under Order 21 Rule 37 read with Section 151 of
CPC to issue arrest warrant against the judgment debtor
Nos.1 to 4 including the petitioner who is arrayed as
judgment debtor No.4 in execution case. The Trial Court
by order dated 02.02.2021 issued an arrest warrant
against the petitioner/judgment debtor No.4, being
aggrieved by the same, the petitioner is before this Court.
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3. Heard Sri.Sachin M.Mahajan, learned counsel
for the petitioner and Smt.Chandrakala, learned counsel
for respondent No.1.
4. It is the primary contention of the learned
counsel for the petitioner that as contemplated under
Order 21 Rule 37 (1) of CPC, once the application is filed
for execution of decree then executing Court has to issue
show cause notice to the judgment debtor before issuing
arrest warrant. He contends that the same is mandatory
rule and learned trial Court judge failed to appreciate the
same. Accordingly, he prays to allow the Writ Petition.
5. Per contra, learned counsel for the respondent
No.1 would contend that the petitioner herein has already
appeared before the Trial Court before filing of the
application for issuance of warrant and thereafter, he
claimed that the matter would be settled between the
parties and requested the Court to refer the matter to the
Lok-Adalath. Inspite of that, he failed to settle the dispute,
so also failed to appear before the Court, as such, the
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executing Court has rightly issued the warrant and prayed
for dismissal of the Writ Petition.
6. Having heard the learned counsel for the parties
and having perused the documents made available before
this Court, it is relevant to extract the provision under
Order 21 Rule 37 (1) of CPC, the same reads as under:
"37. Discretionary power to permit judgment-
debtor to show cause against detention in
prison.-(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"
7. On careful reading of the above provision, it is
clear that before issuing such warrant, the executing Court
shall issue a notice calling upon the judgment debtor to
appear before the Court on that date to be specified in the
notice and show cause as to why he should not be
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committed to the civil prison. On perusal of the order
sheet placed before this Court, it is evident that the Trial
Court failed to issue any such show cause notice to the
judgment debtor. In that view of the matter, I am of the
considered view that the order passed by the Trial Court is
required to be set aside. Accordingly, I pass the following:
ORDER
i. The Writ Petition is allowed.
ii. The order dated 02.02.2021 passed in
E.P.No.107/2016 by the II Additional Civil
Judge and JMFC-IV at Raichur, is set aside.
iii. The Trial Court is directed to issue show
cause notice to the petitioner/judgment
debtor No.4 as contemplated under the
provision of Order 21 Rule 37 (1) of CPC
and proceed with the matter accordingly.
Sd/-
JUDGE
VNR
CT;BN
