IMPORTANT POINT
The court established that the execution of a decree for payment of money must prioritize the sale of the judgment debtor's property before resorting to arrest and detention, and that any order for arrest must be reasoned and comply with procedural requirements.

JUDGMENT :

Viju Abraham, J.

The above original petition has been filed seeking to set aside Ext.P3 order dated 23.05.2024 in E.P.No.53 of 2022 in ARC No.758 of 2019 on the file of the Subordinate Judge’s Court, Payyannur.

2. Short facts necessary for the disposal of the original petition are as follows: Petitioner is the respondent/judgment debtor in E.P.No.53 of 2022 on the file of the Subordinate Judge’s Court, Payyannur and the respondent herein is the petitioner/decree holder in the said execution petition. In execution of the award of the Assistant Registrar of Co-operative Societies (General), Payyanur dated 20.06.2019 in ARC No.758 of 2019 respondent filed E.P.No.53 of 2022 before the Court of Subordinate Judge, Payyannur. As per the execution petition, the total award amount along with interest comes to Rs.11,56,511/- and the mode of assistance of the court required are as follows:

i. The mortgaged property shown in the schedule below may be proclaimed, sold and the sale proceeds may be paid over to the petitioner towards the decree amount.

ii. Notice under Rule 37 of Order XXI of the Code of Civil Procedure (in short, “CPC”) may be issued to the respondent and also a warrant of arrest under Rule 38 and they may be detained in civil prison for the realisation of the decree amount.

3. The petitioner contended that as per the execution petition, the first prayer is to sell the mortgaged property of the petitioner measuring an extent of 4.45 Ares (11 cents) in re-survey no.9/3 of Payyannur amsom, Kavvayi desom of Payyannur Taluk, which has been mortgaged with the bank at the time of availing the loan. A detailed counter statement was filed by the petitioner in the execution petition contending that the entire property need not be sold and only a portion of the property need be sold so as to fulfil the decree debt as the property is situated in the middle of the town and is having a value of more than Rs.5,00,000/- per cent. It is the case of the petitioner that the execution court did not consider the counter statement and without proceeding with the sale of the mortgaged property passed Ext.P3 order dated 23.05.2024 issuing warrant of arrest, that too without conducting an enquiry under Rule 40(1) of Order XXI CPC and without proving the means of the judgment debtor. The contention of the petitioner is that issuance of Ext.P3 order whereby arrest warrant was issued against him is in violation of the provisions of the CPC and also the judgment of this Court in Anilkumar v. Divya, 2023 (5) KHC 341. The petitioner would contend that in Anilkumar’s case cited supra it was categorically held that the execution court cannot invoke the remedy under Clause (c) of Section 51 CPC by issuing arrest warrant against the judgment debtor without exhausting the remedy under Clause (b) of Section 51 CPC by the sale of movable or immovable property if any available. So, on the basis of the same, the first contention of the petitioner is that before issuing arrest warrant, the execution court ought to have proceeded with the sale of movable or immovable property and only thereafter the court could have resorted to the arrest and detention of the judgment debtor in civil prison. Secondly, it is contended that before issuing arrest warrant as per Ext.P3, the procedures as contemplated in Rule 40(1) of Order XXI CPC have not been followed.

4. The respondent entered appearance through counsel and contended that as regard the first contention of the petitioner that the execution court can proceed against the person of the judgment debtor only after proceeding against the property of the judgment debtor is not correct and he relies on the judgments in Shyam Singh v. Collector, District Hamirpur, U.P. and others, 1993 KHC 1018, Leelakumari v. Shikha and others, 2018 (4) KHC 155 and Anjengo Coir Mattings v. Indian Overseas Bank, 1996(1) KLT 506 in support of his contentions.

5. I have heard the rival contentions of both sides.

6. Let me consider the first