The court clarified that the warrant of arrest of the judgment-debtor could be issued under O.21 R.37(1) of the Civil Procedure Code to secure the presence of the judgment-debtor in court, and the provisions of O.21 R.40 and S.51 would apply only at a later stage after the judgment debtor appears in court.

1. This revision petition has bean filed against the order of the Subordinate Judge Ist Class, Zira, dt. 20-1-1986 by which warrants were issued against the judgement debtor to appear in the Court on 15-2-1486.

2. Briefly, the facts are that the decree-holder filed an application that the judgement-debtor had not paid the decretal amount and that he should be detained in civil prison. A notice of the application was given to the judgement-debtor who filed objections in pursuance of the notice. The Court directed him to appear in person but he failed to do so. Consequently, the Court issued a conditional warrant against the judgement-debtor. He has come up in revision to this Court.

3. Mr. Chopra, learned counsel for the petitioner, has argued that the warrant of arrest of the judgement-debtor could not be issued when in the petition the decree-holder had stated that the judgement-debtor had no movable or immovable property. He drew my attention to the provisions of O.21 R.40 and S.51 of Civil P.C. thereinafter referred to as The Code . On the other hand, the learned counsel for the respondent, has urged that the order was not passed under O.21 R.40 read with S.51 of the Code but it was passed under O.21 R.37.

4. I have heard the learned counsel at a considerable length. However, I agree with the submission of the learned counsel for the respondent. O.21, R.87 of the Code provides that where an application as for execution of at decree for payment of money by arrest and detention in civil prison of a judgement-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 date to be specified in the notice and showing cause as to why he should not be committed to civil prison. It further provides that where appearance is not made in obedience to the notice, the Court shall if the decree-holder so requires, issue a warrant for arrest of the judgement-debtor. From a reading of the rule, it is evident that the Court in pursuance of an application for detention of the judgement-debtor in civil prison can secure his presence, if necessary, by issuance of warrant. O.21, R.40 and S.51 come into operation after the Court wants to send him to civil prison for the reason that the decree had remained un-executed.

5. In the abovesaid view, I am fortified by the observations of Mudholkar, J. (as he then was) in Madhusudan Prabhakar V/s. Trimbak Vyankatesh, AIR 1961 Bom 23. It was observed therein that under O.21, R.37(1) the Court has a power to issue a warrant for the arrest of the person against whom the execution is sought. In lieu of issue of such a warrant the court has power to direct the issue of such a notice. But even in answer to such a notice the judgement debtor must appear in Court in person and his appearance through counsel is not enough. Where the judgement-debtor is present on the date originally mentioned in the notice and actually files his written statement on that day but the matter is not taken up by the Court on that day but on a subsequent day, it is obligatory upon him to remain present on that date also. Where a court issues a warrant either under sub-r. (1) or under sub-r. (2) of R.37, it does not do so with the intention of committing the person against whom the warrant is issued to prison. It only issues such a warrant to secure the presence of such a person in court. Therefore, in such a case the provisions of S.51 or O.21, R.40 are not applicable. It is further observed that the provisions of the later rule would apply only at a later stage that is, after the judgement debtor appears in Court, in pursuance either of a notice or warrant. I am in respectful agreement with the above observations.

6. Consequently, I do not find any merit in the revision petition and dismiss the same with costs. Costs Rs. 200/-. The parties are directed to appear in the Executing Court on 16-10-