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Andhra High Court · body

2002 DIGILAW 1273 (AP)

Mukka Ramanna v. Shaik Aflb Ahmed

2002-10-31

C.Y.SOMAYAJULU

body2002
( 1 ) THIS revision is preferred against the order dated 26-09-2002 in E. A. No. 13 of 2002 in e. P. No. 115 of 2000 in O. P. No. 635 of 1997 in the file of the Court of II Additional District judge, Warangal, dismissing the petition filed under Order 21 Rule 106 read with section 151 C. P. C. ( 2 ) RESPONDENT obtained an Award in o. P. No. 635 of 1997 against the revision petitioner and filed E. P. No. 115 of 2000 to execute the same by arresting the petitioner for realisation of the amount due under the award. Since the petitioner did not appear, he was set ex parte and an order of arrest was passed, E. A. No. 13 of 2002 was filed by the petitioner to set aside the ex parte order of arrest passed against him, which was dismissed by the order under revision. ( 3 ) THE contention of the learned counsel for the revision petitioner is that no notice was ever served on the petitioner in the E. P. and in fact the petitioner had filed I. P. No. 19 of 2002 to declare him a insolvent, and so he cannot be arrested, and, therefore, the Court ought to have allowed E. A. No. 13 of 2002 and should have given an opportunity to the petitioner to say what he has to in the E. P. ( 4 ) A perusal of the order under revision shows that the petition was dismissed because the petitioner has not stated the date of knowledge of the order of arrest passed against him. The affidavit filed in support of e. A. No. 13 of 2002 does not show as to when the petitioner had knowledge of the ex parte order of arrest passed against him. What all he stated was that there was to notice at any point of time and he did not evade notice and so the ex parte order passed against him may be set aside. The contention of the learned counsel fof the petitioner is that though the actual date of knowledge is not mentioned, since the petitioner filed the petition on 29-08-2002, it can be taken that the petitioner had knowledge a few days prior thereto and so the Court below was in error in dismissing the petition on the ground of limitation. The contention of the learned counsel fof the petitioner is that though the actual date of knowledge is not mentioned, since the petitioner filed the petition on 29-08-2002, it can be taken that the petitioner had knowledge a few days prior thereto and so the Court below was in error in dismissing the petition on the ground of limitation. ( 5 ) SUB Rule (3) of Rule 106 of Order 21 reads:"an application under Sub Rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order. "in page 3 of the Order under revision, the learned Judge clearly observed that the record shows that notice sent to the petitioner in the e. P. was not served on him before passing of the ex parte order, but since petitioner did not anywhere in his affidavit state the actual date of knowledge of the ex parte order, it should be taken that the petition is barred by time, because first warrant of arrest was issued on 29-01-2001 and the case was being adjourned from time to time till 18-07-2002 for execution of the warrant, and the petition was filed on 29-08-2002 to which date the e. P. was posted for further hearing from 18-07-2002. Since the order of arrest was passed on 29-01-2001 and the case was being adjourned from time to time and since the last date of hearing was 18-07-2002, the learned trial Judge held that even if the last date of hearing is taken as the outer limit, petition filed on 29-08-2002 is barred by time. For reasons best known to the petitioner, he did not mention the date of knowledge of the order of arrest passed against him. I am unable to agree with the contention of the learned counsel for the petitioner that though the affidavit does not disclose the date of knowledge, it should be taken that the petitioner had knowledge only a few days prior to the petition. No such presumption is warranted under any provision of law. Petitioner who came to Court seeking a relief should state all facts which entitle him to the relief sought. He cannot ask the Court to decide his case on unknown or unwarranted presumptions. No such presumption is warranted under any provision of law. Petitioner who came to Court seeking a relief should state all facts which entitle him to the relief sought. He cannot ask the Court to decide his case on unknown or unwarranted presumptions. Since the petitioner did not mention the date of knowledge of the order in his affidavit I find no grounds to interfere with the order of the learned judge dismissing his petition to set aside the ex parte order, filed beyond 30 days from the date of order. ( 6 ) IN my opinion, petitioner would not in any way be prejudiced by the order of arrest passed against him, because he is stated to have filed I. P. No. 19 of 2002 to declare him an insolvent. A person, who is arrested, can be sent to prison only if he has means to pay and is evading payment. Sub rule (1) of Rule 40 of order 21 C. P. C. lays down that when the judgment-debtor isbroughtbeforethecourt after being arrested in execution of a decree for payment of money, the Court shall proceed to hear the decreeholder and take all such evidence as may be produced by him in respect 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. Since filing of I. P. is itself an act of insolvency, ithas to be taken that the person who filed the I. P. does not have means to pay the amount covered by the decree, and so as and when the petitioner is taken before the Court on his being arrested in pursuance of the warrant of arrest issued against him before his being committed to prison there would be an enquiry under Rule 4 of Order 21 C. P. C. when the petitioner will have an opportunity to bring to the notice of the executing court about his filing of I. P. and his inability to pay the amount and his immunity from arrest. In view there of petitioner, in any event would not be prejudiced even if the ex parte order of arrest is not set aside. For that reason also I find no merits in this petition. Hence the revision petition is dismissed. No costs.