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2008 DIGILAW 259 (KAR)

S. Rajanna v. S. Lingaraju Urs

2008-06-02

A.S.PACHHAPURE

body2008
ORDER Pachhapure, J. The writ petition is filed challenging the order dated 21.07.2007 issuing the warrant of arrest against the petitioner in Execution Case No. 31/1999. 2. The facts relevant for the purpose of this petition arise is as under : The respondent filed O.S. No. 6905/1989 and obtained a decree for money. He sought the execution in Execution Case No. 31/1999 and during the pendency of the Execution proceedings, some part payment was made by the petitioner. On 21.07.2007 the respondent received Rs.3,000/- and the Trial Court issued the arrest warrant stating that the decretal amount has not been fully satisfied. The said order is challenged before this Court. 3. I have heard the learned Counsel for the petitioner and also the respondent. 4. To issue warrant of arrest against the JDR, the Court has to adopt the procedure prescribed under the provision of Order 21, Rules 37 to 40 of the Civil Procedure Code. No show-cause notice has been issued and on the day when part payment was made by the JDR the Executing Court passed the following order as under: “Issue A/W to JDR. It is necessary to note that, when the personal liberty of an individual is to be taken away under an order directing the arrest, it is necessary in law to issue a show cause notice. There must be material to prove that the JDR is avoiding the payment despite the fact that he has sufficient means to pay and then the Court has to pass appropriate order issuing the warrant of arrest. 5. The Executing Court has not taken into consideration the provisions referred to supra and has not applied its mind and passed the impugned order which is illegal. 6. In the circumstances, the petition is allowed. The order dated 21.07.2007 issuing the warrant of arrest against the petitioner is quashed. The matter is remitted back to the Executing Court to consider the issuance of warrant of arrest in accordance with the procedure and to pass appropriate orders in accordance with law in the light of the observation made above and expedite the disposal of the proceedings.