The main legal point established in the judgment is the requirement for substantial compliance with the provisions of the Code of Civil Procedure, particularly the necessity of conducting an inquiry under Order 21 Rule 40 before sending the judgment debtor to civil prison.

N.K. Agarwal, J.

1. The instant petition filed under Article 227 of the Constitution of India calls in question the legality and propriety of the order dated 01.02.2010 (Annexure P/l) passed by District Judge Durg, in Execution Case No. 5-A/ 1999, whereby and whereunder the executing court directed for issuance of warrant of arrest against the judgment debtor/Petitioner and fixed the matter for his presence for the purpose of sending him to the civil prison.

2. Brief facts of the case are: an application under Order 21 Rules 37, 38 and 39 of the Code of Civil Procedure, 1908 (for short 'the Code') was filed by the Respondent No. 1 for recovery of decreetal amount by sending judgment debtor to civil prison. Petitioner did not deposit Rs. 50,000/- i.e. part of decreetal amount despite time granted by the court on his own request. Petitioner did not appear before the court in obedience of court's order dated 23.03.06 and 25.01.07. On 08.10.2009, Petitioner's counsel intimated that Petitioner is now residing in the State of Haryana, not taking interest in the matter and also not in tough with him. In these circumstances, matter was heard by the executing court and the order impugned was passed.

3. Shri Sanjay K Agrawal, learned Counsel appearing for the Petitioner assailed the order on the ground.: the same is not passed in strict adherence of provisions contained in proviso to Section 51, Order 21 Rules 37, 38 and 39 and Order 21 Rule 11-A of the Code. It was further contended order impugned was passed without holding any enquiry in terms of Order 21 Rule 40 of the Code, and therefore, the impugned order is liable to set aside. In support of his contention, reliance has been placed in cases of Jolly George Varghese and Anr. v. The Bank of Cochin 1980 (2) SCC 360, Pundlik S/o Mahadu Nazire v. Maharashtra State Farming Corporation AIR 1992 Bom 48, Subhash Chandra Jain v. Central Bank of India AIR 1999 MP 195, K. Vijaykumar v. N. Gururaja Rao AIR 2004 AP 435 and Joseph K. Mathai v. Luckose Kurian AIR 1979 Ker 235.

4. On the other hand, Smt. Fouzia Mirza, learned Asst. Solicitor General, appealing for Union of India/Respondent No. 1 vehemently argued, the order impugned has been passed by the executing court after affording due opportunity of hearing to the Petitioner, in due compliance of the relevant provisions of Code and the same deserves to be upheld. She would further submit, vide order impugned, the executing court has only ordered for production of judgment debtor by way of arrest, thereafter imperative procedure has to be followed under Order 21 Rule 40 of Code for the purpose of conducting enquiry before sending him to civil prison. This stage has not yet reached. It was further contended, from vary perusal of order sheets (Annexure P/8) it is evident that the Petitioner is not only avoiding payment of decreetal amount but also avoiding his presence before the lower court.

5. I have heard the counsel appearing for the parties and perused the order impugned.

6. Under proviso to Section 51 of Code, no order for detention in prison of the judgment debtor can be passed by the court unless he has been given an opportunity of showing cause why he should not be committed to prison and for the reasons recorded in writing, is satisfied (a) by delivery of any property specifically decreed (b) by attachment and sale or by the sale without attachment of any property and (c) by arrest and detention in prison l[for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that section.

7. Under Order 21 Rule 37 of the Code, 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 him to appear before the Court on a day to be specified in the notic