Research › Search › Judgment

Bombay High Court · body

2002 DIGILAW 1250 (BOM)

Vithoba N. Adel v. Central Bank of India

2002-12-12

P.V.KAKADE

body2002
ORAL JUDGMENT P.V. Kakade, J. Rule, Rule made returnable forthwith by consent. Heard the learned counsel for both the sides and perused the original record and proceedings which was called for the purpose. 2. The petition is aimed against the order passed by the learned Civil Judge, Senior Division, Margao in Special Execution Application No. 22/84/A which was filed by the petitioner-Judgment-debtor No. 2 at Exh. 98 making various submissions to avoid payment under the decree and the consequences thereafter. It was rejected by a reasoned order stating that the learned Executing Judge did not find any substance in the application and it came to be dismissed with costs and warrant of arrest was directed to be issued against the petitioner-judgment-debtor No. 2. Pending the writ petition, the warrant of arrest was stayed by an interim order of this Court dated 21st November, 2002. In the course of the hearing, the learned counsel for the petitioner sought to put reliance on the provisions of Section 51 of the CPC. The proviso thereof clearly stipulates that where the decree is for the payment of money execution by detention in prison shall not be ordered, unless after giving the JD an opportunity of showing cause why he should not be committed to prison shall not be made. Therefore, in the present case it is evident position that no formal notice contemplated under Section 51 of the CPC was issued to the petitioner at all. It may be noted that merely the fact that the petitioner-judgment-debtor No. 2 was aware of the proceeding would not be sufficient unless a formal show cause notice is served upon him. In view of this situation, without further elaboration, it is held that the order dated 10th July, 2002 passed by the learned Civil Judge SD, Margao in Special Execution Application No. 22/84/A is liable to be set aside and stands set aside. 3. It is hereby directed that the learned trial Judge shall issue the notice contemplated under proviso to Section 51 of the CPC to the petitioner-judgment-debtor No. 2 and pass appropriate orders after giving an opportunity to both the sides in this regard. 4. With these observations, the petition stands disposed of with no order as to costs. The warrant of arrest issued on 18th April, 2001 stands quashed.