IMPORTANT POINT
The main legal point established is that the provisions of Order 21 Rule 37 of the CPC can only be invoked when there is an application for the execution of a decree for the payment of money.

JUDGMENT :

AJAY MOHAN GOEL, J.

1. By way of this petition filed under Article 227 of the Constitution of India, the petitioner has challenged order dated 18.10.2023, passed by the Court of learned Senior Civil Judge, Shimla, H.P. in a Contempt Petition filed under Order 39 Rule 2-A of the Code of Civil Procedure (hereinafter referred to as the “CPC”) by the Decree Holder, in terms whereof, warrant of arrest has been issued against the present petitioner by invoking the provisions of Order 21 Rule 37 of the CPC by the learned trial Court.

2. Learned counsel for the petitioner has argued that the impugned order ex facie is not sustainable in the eyes of law, as the learned trial Court erred in not appreciating that the provisions of Order 21 Rule 37 of the CPC, can be invoked only in the event of there being a money decree in favour of the Decree Holder and herein, as the contention of the party, which had filed an application under Order 39 Rule 2-A of the CPC was that there was a willful disobedience of the interim order passed by the learned trial Court, by no stretch of imagination, warrant of arrest could have been issued as provided under Order 21 Rule 37 of the CPC. Accordingly, he submits that as there is a jurisdictional error committed by the learned trial Court while passing the impugned order, the petition be allowed and the impugned order be set aside.

3. Learned counsel for the respondents argued that the proceedings have been initiated by the respondents under Order 39 Rule 2-A of the CPC as the petitioner has willfully disobeyed the interim directions, which were passed by the learned trial Court in an application filed under Order 39 Rule 1 and 2 of the CPC, in a Civil Suit preferred by the present respondents. He further submitted that as it stands proved on record that the present petitioner has indeed willfully disobeyed the Court order, therefore, there is no infirmity in the directions passed by the learned trial Court. However, he states that no application under Order 21 Rule 37 of the CPC in fact was filed by the respondents before the learned trial Court.

4. I have heard learned counsel for the parties and I have also carefully gone through the documents appended with petition including the impugned order.

5. A perusal of the impugned order demonstrates that in terms thereof, the learned trial Court has ventured to dispose of the proceedings, initiated against the petitioner under Order 21 Rule 37 of the CPC by issuing a warrant of arrest.

6. Order 21 Rule 37 of the CPC provides as under:

“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 [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.

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 local limits of the jurisdiction of the Court.

(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.”

7. A simple reading of Order 21 Rule 37 thus demonstrates that the same starts with a non-obstante clause and provides that 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 t