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1972 DIGILAW 34 (GAU)

Wahengbam Menjor Singh v. Adweta Debota

1972-06-06

B.N.SARMA

body1972
Judgement The first judgment-debtor in Execution Case No. 14 of 1971 on the file of the Munsiff, Bishenpur, has filed this revision petition against the order of the Munsiff dated 3-12-1971 directing the issue of a warrant for his arrest in execution of the money decree passed in O. S. No. 15 of 1968 of the Court of the then Munsiff No. 5 of Manipur. For proper appreciation of the law points urged by the learned counsel, the facts leading to the present revision petition may be briefly stated here. 2. The decree-holder-opppsite party filed an application for execution on 4-9-1971 praying for execution of the decree by arrest and detention of the Judgment-debtor in civil prison. The learned Munsiff issued a notice to the judgment-debtor under Order XXI. Rule 37, Civil P. C. to show cause as to why the decree should not be executed in the manner as prayed for. On receipt of this notice the judgment-debtor appeared and showed cause. The cause shown by him was, however, beside the points and not actually an answer to a notice under Order XXI, Rule 37, Civil P. C. The learned Munsiff on perusal of the cause shown by the judgment-debtor rejected his objection as frivolous and, by his order dated 24-11-71, without making any enquiry as contemplated under Rule 40 of Order XXI, he decided to proceed with the execution case and directed the decree-holder to take necessary steps. After this the decree-holder deposited the necessary costs and diet money for one month upon which the learned Munsiff ordered for issue of a warrant for the arrest of the judgment-debtor, by his order dated 3-12-1971, which is the impugned order. 3. The only ground urged by Shri Charugopal Singh, the counsel for the petitioner, before me, is that there has been no compliance with the provisions of Section 51 of the Civil P. C. inasmuch as the Court below did not make any enquiry as required under Rule 40 of Order XXI, and it has not recorded its satisfaction as to the existence of any of the conditions mentioned in the proviso to Section 51 of the Code, to justify the execution of the decree by detention of the petitioner in civil prison. 4. 4. On the other hand, the learned counsel for the decree-holder-opposite party, Shri Priyananda Singh, contends that the impugned order is appealable and hence the revision petition is not maintainable. He further contends that if the revision petition is held to be maintainable, the order complained of is simply for the arrest of the petitioner and not for his detention in civil prison in execution of the decree, and as such the provisions of Section 51 are inapplicable in the present case. According to him, the arrest and detention in civil prison represent two different and distinct stages in the process of execution of a decree, and that Section 51 comes into play only when the order of detention is to be passed. 5. The contention of the learned counsel for the opposite party that the impugned order is appealable and as such no revision petition is maintainable is evidently without any substance, Cl. (h) of Section 104 of the Code of Civil Procedure, which enumerates the appealable orders is in the following terms : "(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree." 6. It Is abundantly clear from the above provisions that an order of arrest passed in execution of a decree is not appealable. 7. The learned counsel for the opposite party submitted that the impugned order is one under Section 47 of the Civil P. C., and that an order determining any question under the said section being a decree within Section 2 (2) is appealable under Section 96 of the Civil P. C. In support of this contention he relied on the decisions in Kirtyanand Singh v. Banarsi Prasad. AIR 1933 Pat 248 (1) and Sardar Khan v. Sunder Singh, AIR 1937 Lah 706. 8. In the former case it has been held that an order under O. 21, R. 40 is appealable; but the provisions of O. 21. R. 40, do not apply until the judgment-debtor has appeared in Court. I have already pointed out that the learned Munsiff did not proceed with the enquiry under Order XXI, Rule 40 at all. The impugned order cannot, therefore, be treated as one under the said rule. 9. R. 40, do not apply until the judgment-debtor has appeared in Court. I have already pointed out that the learned Munsiff did not proceed with the enquiry under Order XXI, Rule 40 at all. The impugned order cannot, therefore, be treated as one under the said rule. 9. In AIR 1937 Lah 706, it was held that an order in execution committing a judgment-debtor to prison for an unspecified period conclusively determines the right of the parties with regard to one matter in controversy, namely, whether the judgment-debtor should be sent to prison in execution of the decree. The order, therefore, is appealable as a decree. 10. In the present case, the learned Munsiff has not yet decided, as the learned counsel for the opposite-party himself admits, that the judgment-debtor should be sent to the prison in execution of the decree. According to him, the stage for determining this question would reach only when the judgment-debtor is produced before the Magistrate in execution of the warrant of arrest or he himself appears before the Court. The case reported in AIR 1937 Lah 706, therefore, has got no bearing on the present case. In the result, I have no hesitation to hold that the impugned order is not appealable, and that the revision petition is quite maintainable. 11. The next question for determination is whether the learned Munsiff was justified in ordering the issue of warrant for the arrest of the petitioner without any enquiry under Order XXI, Rule 40 of the Civil P. C., as to the existence of any of the conditions justifying the detention of the petitioner in civil prison in execution of the decree as contemplated in the proviso to Sec. 51 of the Code. 12. As already pointed out, the contention of the learned counsel for the opposite-party is that the arrest and detention in civil prison represent two different and distinct stages in the process of execution of a money decree, and that Section 51 comes into play only when the order of detention is to be passed and not at the time of issuing a warrant of arrest under Rule 31 of Order XXI. In support of this contention he relied on the decision in B. K. Puttaramiah v. Haji Ibrahim Essack and Sons. AIR 1959 Mys 94, and Londa Abbayee of Pithapuram v. Badam Suryanarayana, AIR 1948 Mad 9. In support of this contention he relied on the decision in B. K. Puttaramiah v. Haji Ibrahim Essack and Sons. AIR 1959 Mys 94, and Londa Abbayee of Pithapuram v. Badam Suryanarayana, AIR 1948 Mad 9. In both these cases it was held that the mandatory proviso to Section 51 will have to be satisfied only while committing the judgment-debtor to the prison and not at the earlier stages. In other words, the inhibition contained in Section 51 is not applicable while ordering the arrest of the judgment-debtor. 13. Though there are decisions to the contrary, on a careful consideration of the provisions of Rules 37 to 40 of Order XXI, and Section 51 of the Civil P. C., I am in respectful agreement with the view of the learned Judges taken in the above two cases. But then, in the facts and circumstances of the Present case, these two cases have got no bearing, in my opinion. Had the warrant of arrest been issued under Rule 37 (2) of Order XXI, the above decisions would have been applicable. But, in the circumstances of the present case it cannot be said that the warrant of arrest was ordered to be issued under the said rule. It will be apposite here to reproduce the provisions of Rules 37 and 40 of Order XXI of the Civil P. C., which are relevant in the present case : "37(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 to 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. (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. x x x x x x 40 (1) When a judgment-debtor appears before the Court in obedience to a notice issued under Rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, 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 the civil prison. (2) Pending the conclusion of the inquiry under sub-rule (1) the Court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required. (3) Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of Section 51 and to the other provisions of this Code, make an order for the detention of the judgment-debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest : Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied. (4) A judgment-debtor released under this rule may be re-arrested. (5) When the Court does not make an order of detention under sub-rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release." 14. It is clear from the above provisions of Rule 37 (2) that the Court can issue warrant for the arrest of the judgment-debtor only when he fails to make appearance in obedience to the notice issued under Rule 37 (1). It is clear from the above provisions of Rule 37 (2) that the Court can issue warrant for the arrest of the judgment-debtor only when he fails to make appearance in obedience to the notice issued under Rule 37 (1). If he makes appearance, the Court is to proceed with the enquiry as contemplated in Rule 40 to satisfy itself about the existence of any of the conditions for execution of the decree by detention of the judgment-debtor in prison, as mentioned in the proviso to Section 51. During the pendency of such enquiry the Court can either order the judgment-debtor to be detained in the custody of an officer of the Court or release him on his furnishing security. Upon the conclusion of such enquiry if the Court decides to make an order for detention of the judgment-debtor in the civil prison it can cause him to be arrested if he is not already under arrest, as provided in sub-rule (3) of Rule 40. 15. In the instant case, as already pointed out, the petitioner appeared before the Court in obedience to the notice issued to him under Rule 37 (1). That being so, there is no scope to issue any warrant of arrest under sub-rule (2) of Rule 37. There is also no scope to cause the petitioner to be arrested under sub-rule (3) of Rule 40 as the enquiry contemplated in the said rule was admittedly not made. On appearance of the petitioner-judgment-debtor before the Court, in obedience to the notice issued to him under sub-rule (1) of Rule 37, the proper course for the Court was to proceed with the enquiry as contemplated in sub-rule (1) of Rule 40 and to make an appropriate order under sub-rules (3) to (5) subject to the provisions of Section 51 and other provisions of the Code, such as those of Sections 55 and 59. In utter disregard of this procedure the Court adopted a curious procedure, unknown to law in ordering the issue of warrant for the arrest of the petitioner even after he made an appearance in Court in obedience to the notice to Rule 37 (1) and without any enquiry under Rule 48. 16. In the above circumstances of the case, the impugned order cannot be sustained and must be set aside. The revision petition is allowed and the rule is made absolute. 16. In the above circumstances of the case, the impugned order cannot be sustained and must be set aside. The revision petition is allowed and the rule is made absolute. In the circumstances of the case, I leave the parties to bear their own costs. Revision allowed.