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2015 DIGILAW 827 (MP)

MANIKLAL KANSKAR v. CENTRAL BANK OF INDIA, MANDLA

2015-08-11

ALOK ARADHE

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ORDER : Alok Aradhe, J. Heard. In this petition under Article 227 of the Constitution of India the petitioner has challenged the validity of the order dated 8-9-2011 passed in execution case No.9-B/1994 by the executing Court directing the petitioner to be detained in civil prison for a period of three months. 2. The facts, leading to filing of the writ petition, briefly stated, are that the respondent No. 1 plaintiff filed the suit against the petitioner as well as the respondents 2 to 7 for recovery of an amount of Rs. 2,38,556.75/-. The suit filed by the respondent No. 1 was decreed. In execution proceeding, the executing court vide impugned order dated 8-9-2011 has directed detention of the petitioner in civil prison for a period of three months. 3. Learned counsel for the petitioner submitted that the impugned order passed by the trial Court is procedural ultra vires inasmuch as no enquiry as contemplated under Order 21, Rule 40 of the Code of Civil Procedure has been held. On the other hand, learned counsel for the respondent No. 1 has supported the order passed by the trial Court. 4. I have considered the respective submissions made by learned counsel for the parties. Order 21, Rule 40 of the Code of Civil Procedure prescribes the procedure on appearance of judgment-debtor in obedience to notice or after arrest. The aforesaid provision inter aha provides that after appearance of the judgment debtor, the executing court shall proceed to hear the decree holder and take all such evidence 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. In the instant case, the procedure prescribed under Order 21, Rule 40 has not been followed. The impugned order suffers from procedural illegality as well as error apparent on the face of the record. Accordingly, the impugned order dated 8-9-2011 is hereby quashed. The trial Court shall conduct the enquiry as prescribed under Order 21, Rule 40 of the Code of Civil Procedure and thereafter shall proceed to decide the execution proceeding in accordance with law. With the aforesaid directions, the writ petition is disposed of. C.C. as per rules.