Arrest of judgment debtor for non-payment of decree amount when to be ordered.

This civil revision petition by the judgment-debtor-respondent in R.E.P.No.172 1990 on the file of the Subordinate Judge’s Court, Krishnagiri, is against the order 2.12.1991 in the said petition for his arrest.

2. Admittedly, pursuant to notice under O.21, Rule 37, C.P.C. the judgment-debtor before the executing court and filed his counter to the said execution petition for his and detention in prison. No doubt the petitioner was paying several amounts towards decree amount on different dates, on which the execution petition was posted. But, abovesaid date 2.12.1991, he did not appear before court and he did not also pay a Rs.6,000 which he was directed to pay in the preceding hearing date. Therefore, he ex parte by the impugned order and the execution court below, observing ordered arrest by 31.12.1991.

3. The learned counsel for the petitioner submits that this order is against the procedure prescribed under O.21, Rule 40, C.P.C. According to the said provision, when the judgment debtor appears before court, pursuant to notice under O.21, Rule 37, C.P.C., "the court proceed to hear the decree-holder and take all such evidence as may be produced by him support of his application for execution and shall then give the judgment- opportunity of showing cause why he should not be committed to the civil prison." contention of the learned counsel for the petitioner is that the execution court has erred not conforming to this provision by proceeding to hear the decree-holder and take evidence as may be produced by him and then give the petitioner an opportunity of showing cause why he should not be committed to civil prison,, and in ordering straightaway arrest simply stating that by way of affidavit of the decree-holder, the means of the judgment debtor have been proved. As against this contention, the learned counsel for the respondent decree-holder submits that the impugned order could be justified pursuant to what contained in O.21, Rule 40(2), C.P.C. or under O.21, Rule 37(2), C.P.C.

4. But, O.21, Rule 40(2), C.P.C., inter alia only says pending conclusion of enquiry under sub-rule (1), the court may, in its discretion, order the judgment-debtor to be detained in custody of an officer of court. This sub-rule (2) of Rule 40 does not at all provide for order arrest. However, it has to be seen whether in the light of what is laid down P.G.R.Padayachi v. Mayavaram Financial Corporation, (1973)2 M.L.J. 93: A.I.R. 1974 Mad. (D.B.), the impugned order could be sustained under O.21, Rule 37(2), C.P.C. O.21, Rule (1) and (2) run as follows:

"37. Discretionary power to permit judgment-debtor to show cause against detention prison: (1) Notwithstanding anything in these rules, where an application is for the execution decree for the payment of money by the arrest and detention in the civil prison of judgment-debtor who is liable to be arrested in pursu ance 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 committed to the civil prison: Provided that such notice shall not be necessary if the court is satisfied, by affidavit, otherwise that, with the object or effect of delaying the execution of the decree, 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". The abovesaid Division Bench case is also similar to the present one. There executing court has notice under 0.21, Rule 37(1), C.P.C. to the judgment-debtor appeared before the court and filed a counter. However, the judgment-debtor offered the decree amount and the executing court gave him time for payment. On the adjourned date, no payment was made and that is why the executing court passed the order of w