IMPORTANT POINT
The obligation of the decree-holder to establish the means of the judgment-debtor sufficient to discharge the decretal debt before issuing a warrant of arrest.

JUDGMENT

1. This Civil Revision Petition is filed under Article 227 of the Constitution of India by the petitioner/respondent against the order dtd. 29/11/2021 in E.P.No.37 of 2017 in O.S.No.16 of 2010 on the file of the court of Senior Civil Judge, Tadepalligudem, West Godavari District.

2. The petitioner is JDr and the respondent is DHr. DHr filed the execution petition to issue warrant of arrest against the JDr for realization of the decretal amount. The execution Court issued notice to JDr under Order 21 Rule 37(1) of CPC. In response thereto, the JDr appeared through a counsel and filed his counter denying the contention of the DHr as false. DHr further stated that he does not have any properties and is not earning Rs.2, 00, 000.00 on commission basis as alleged by the DHr. He further denied of having RCC building bearing Door No.6-4/1 of Bhuvanapalli. He claimed that he is unable to work due to his ill-health of Hepatitis ICD CODE K 76.9 with a portal hyper tension ICD CODE K 76.6 peripheral neuropathy ICD CODE G 90.0 and he is under treatment of Dr.I Nalini Prasad MD, DM, consultant of Gastrologist Dr.A.Geetha Priyadarshini MD, DM, Consultant, Endocrynologist. He further placed reliance on the Lab reports in support of his health condition and prayed to dismiss the execution petition.

3. After hearing both sides as recorded by the execution Court itself, it allowed the execution petition and directed issue of warrant under Order 21, Rule 37(1) CPC and made the following observations at para 6 of its decision:

"In the earlier this Court has issued notice under Order 21 Rule 37(1) CPC. Though no evidence is adduced by the petitioner/DHr on the strength of the affidavit under Order 21, Rule 37(2) CPC warrant can be issued whever the JDr fails to appear. It amounts to disobedience to the earlier notice even though he appeared through an Advocate since the notice under Order 21, Rule 37(1) CPC is mandatory obligation on the part of the judgment debtor and it is his obligation to appear before the executing Court in person on receiving the notice in obligation under Order 21, Rule 37 CPC for each and every adjournment. He cannot escape from his appearance by engaging an Advocate which would not constitute the strict compliance of Order 21, Rule 37(1) CPC. Therefore, in this case on hand the absence of JDr itself entitles the DHr for the arrest of the JDr."

4. Having aggrieved by the same, the revision petition is filed by JDr mainly stating that it is mandatory to conduct the enquiry and that it is not mandatory that on every date of adjournment the JDr to appear before the Court. It is also contended that JDr can appear through a counsel and participate in the enquiry, however the execution Court went wrong in ordering arrest of JDr only on the ground of non-appearance.

5. On 23/2/2022, this Court recorded that the notice sent to the respondent/DHr was returned with an endorsement unclaimed. It is further recorded on 16/3/2022 that despite service of notice, none entered appearance on behalf of the respondent.

6. Therefore, the revision petitioner is heard.

7. Order 21, Rule 37 CPC reads as follows: Execution of Decrees and Orders

37. 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 1[shall], instead of issuing a warrant for his arrest, issue a notice calling upon 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: (2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

8. The proceeding subsequent to appearance of JDr on receipt of n