Mr. Pavan Kumar Aggarwal vs G.Raj Kumari
2022 Latest Caselaw 6044 Tel

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

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

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

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.

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.

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

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

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