Research › Search › Judgment

Andhra High Court · body

2003 DIGILAW 1342 (AP)

Badrachalam Suryanarayana v. Lotla Varalaxmi

2003-11-03

G.YETHIRAJULU

body2003
( 1 ) THIS Revision Petition has been filed by the judgment-debtor against the order of arrest passed by the Junior Civil Judge, sompeta in E. P. No. 22 of 2001 in O. S. No. 56 of 1997. The respondent filed a suit for recovery of money and it was decreed. Subsequently the Execution Petition was filed for arrest of the Judgment debtor under order 21 Rule 37 C. P. C. and the Court on 7-11-2002, passed the following order:"j. Dr. called absent. No evidence is contemplated before Arrest. Hence arrest the J. Dr. by 5-12-2002. " ( 2 ) WHENEVER an Execution Petition for arrest of the judgment-debtor is made, the procedure contemplated under Order 21 rule 40 has to be adopted, which reads as follows:"proceedings on appearance of judgment-debtor in obedience to notice or after arrest. 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. (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 rearrested. (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. " ( 3 ) ACCORDING to the said provision, 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 as to why he should not be committed to the civil prison. The lower court without following the procedure as contemplated under the Code of Civil Procedure, simply mentioned that no evidence is contemplated before arrest. The order is assailed by the revision petitioner by saying that it cannot stand due to failure of the lower court in following the procedure before ordering arrest. The lower court without following the procedure as contemplated under the Code of Civil Procedure, simply mentioned that no evidence is contemplated before arrest. The order is assailed by the revision petitioner by saying that it cannot stand due to failure of the lower court in following the procedure before ordering arrest. ( 4 ) THE learned counsel for the revision petitioner relied on a judgment of this court in Sikile Moses v. K. Seetharam Das A learned single Judge of this court while considering the scope of Section 51, Order 21, Rules 11,37 and 40, held that the trial court has neither given any reasons for directing arrest of the judgment debtor nor did it conduct an inquiry as contemplated under Order 21 Rule 40. ( 5 ) IT is incumbent upon the Execution court to hear the decree holder and after recording evidence to give an opportunity to the judgment debtor to show cause as to why he should not be committed to the civil prison. The order of arrest cannot therefore, stand a moments scrutiny. In the light of the failure of the lower court to follow the procedure as indicated above and in the light of the judgment of this court referred supra, the order cannot stand and it is liable to be set aside. ( 6 ) IN the result, the revision petition is allowed. The order of the lower court dated 07-11-2002 is set aside. The lower court shall restore the Execution Petition if closed, give an opportunity to both parties to adduce evidence both oral and documentary and pass appropriate orders within two months from the date of receipt of a copy of this order, keeping in view the procedure prescribed under Order 21-regarding the arrest of the judgment debtor for nonpayment of the decree amount. During the pendency of this matter, the revision petitioner deposited Rs. 20,000/- as per the interim direction given by this court. The respondent is at liberty to withdraw the said amount without furnishing any security. No order as to costs.