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Andhra Pradesh High Court
Judges : ANANTA NARAYANA AYYAR, P.SATYANARAYANA RAJU
Suravarapu Putrayya - Appellant
Versus
Maddukuri Veerraju - Respondent
Decided On : 12-04-63
Code of Civil Procedure - Execution Petition - Provisions of Section 51 - Summary
Fact of the Case:
The appeal was filed against an order of the Subordinate Judge's Court, Kakinada, made on an execution petition. The appellant contended that the order contravened the provisions of section 51 of the Code of Civil Procedure as there was no enquiry and a finding as contemplated by that section.
Finding of the Court:
The court found that the provisions of Order 21, rule 40, would apply only at a later stage, after the judgment-debtor appears in Court in pursuance of a notice or a warrant. The court dismissed the appeal with costs, stating that when the appellant appears in court, the learned Judge will make an enquiry as required by Order 21, rule 40 and section 51 of the Code of Civil Procedure.
Issues: The main issue was whether the order contravened the provisions of section 51 of the Code of Civil Procedure due to the lack of enquiry and finding as contemplated by that section.
Ratio Decidendi: The court interpreted that the provisions of Order 21, rule 40, would apply only at a later stage, after the judgment-debtor appears in Court in pursuance of a notice or a warrant, and therefore, the order of the learned Judge was right.
Final Decision: The Civil Miscellaneous Appeal and the Letters patent Appeal were dismissed.
( 1 ) C. M. A. NO. 281 of 1963 is filed against an order of the Subordinate Judge s Court, Kakinada, made an on execution petition. The order reads as follows :-"counter of second judgment-debtor alone is filed, on 9th August, 1963. Second judgment debtor called-absent. Ex parte. Affidavit discloses grounds for arrest. Arrest second judgment - debtor-20th September, 1963. "
( 2 ) IT is contended by the learned counsel for the appellant that this order contravenes the provisions of section 51 of the Code of Civil Procedure inasmuch as there was no enquiry and a finding as contemplated by that section. It is, however, argued by Sri M. Suryanarayanamurthy, learned counsel for the decree-holder, that where a Court issues a warrant either under sub-rule (1) or under sub-rule (2) of rule 37, it does not do so with the intention of committing the person against whom the warrant is issued to prison ; that it only issues such a warrant to secure the presence of such a person in Court, and that, therefore, the provisions of section 51 or Order 21, rule 40, are not applicable to such a case. Authority for this view is to be found in the judgment of Mudholkar, J. , (as he then was) in Madhusudan prabhakar Chitale v. Trimbak Vyankatesh Joshi. , A. I R. 1961 Bom. 23.
( 3 ) IN a case like the present, the provisions of Order 21, rule 40, will apply only at a later stage, that is, after the judgment-debtor appears in Court in pursuance either of a notice or a warrant. In this view the order of the learned Judge is right. When the appellant appears in court, the learned Judge will no doubt make an enquiry as required by Order 21, rule 40 and section 51 of the Code of Civil Procedure. This appeal is dissmissed with costs.
( 4 ) IN view of the dismissal of the Civil Miscellaneous Appeal, the Letters patent Appeal is also dismissed. Appeals dismissed.
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