The petitioner in the C.R.P. is the defendant in O.S.No.149 of 1999, on the file of the Principal Junior Civil Judge, Kothapet. The suit was filed by the respondent, for recovery of certain amount. It was decreed on 20.8.2004. After the decree became final, the respondent filed E.P.63 of 2004, under Order XXI Rule 37 C.P.C. The executing court issued notice to the petitioner, requiring him to appear before it on 20.1.2005.

2. Petitioner filed Vakalat and counter affidavit on 20-1-2005 On the same day, the respondent filed E.A.No.325 of 2005, under sub-rule (2) of Rule 37 of Order XXI C.P.C., stating that the petitioner did not appear in person, before the executing court, in response to the notice issued to him, and in that view of the matter, he must be arrested. The trial court allowed the E.A., and issued warrant of arrest against the petitioner, through an order passed on the same day. The petitioner challenges the said order.

3. Sri V.L.N.G.K.Murthy, learned counsel for the petitioner, submits that the notice served upon the petitioner in Form No.12 of Appendix-E of C.P.C., is similar to the notice issued in a suit, and it does not contemplate the appearance of the recipient of the notice in person. Referring to various rules in Order III and forms prescribed under various schedules of C.P.C., he contends that unless the court issues a notice, specifically directing the party to appear in person, filing of vakalat by the party, must be treated as compliance with the notice. He draws the attention of the Court, to Form-3 in Appendix-F,and other similar Forms, where the notice is required to appear in person. He has made extensive submissions, touching on the interpretation of Rules 37 and 40 of Order XXI C.P.C.

4. Sri T.V.S.Prabhakar Rao, learned counsel for the respondent, submits that the very purpose of issuing notice in the proceedings initiated under Rule 37 of Order XXI C.P.C., is to require the physical appearance of the judgment debtor. He contends that if the purport of Rules 37 and 40, is taken into account, it becomes evident that the judgment debtor must appear before the Court, on receiving a notice issued in such proceedings.

5. The only question that arises for consideration in this revision, is as to whether a judgment debtor in a decree, is under obligation to appear before the executing court in person, on receiving a notice in an application filed under Rule 37 , Order XXI C.P.C., or his entering appearance, through an Advocate, would constitute compliance. While the petitioner insists that filing of vakalat must be treated as compliance, and it is not necessary that the judgment debtor must appear in person, the respondent contends the other way.

6. Before any discussion is undertaken, it is better to have an idea about Rule 37 of Order XXI C.P.C. It reads as under:

“Discretionary power to permit judgment debtor to show cause against detention in prison:

(1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment debtor who is liable to be arrested in pursuance of the application, the court shall, instead of issuing a warrant for his arrest, issue a notice calling upon on him to appear before the court on a day to be specified in the notice and show cause why he should not be committed to the civil prison:

PROVIDED that such notice shall not be necessary if the court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree. the judgment debtor is likely to abscond or leave the Incal limits of the jurisdiction of the court

(2) Where appearance is not made in the notice, the court shall, if the decree holder so requires, issue a warrant for the arrest of the judgment debtor.”

From a reading of this provision, it becomes evident that whenever an application is filed under Rule 37, the executing court has