Judgment

Mr. Vikas Suri, J.

This Revision Petition has been preferred invoking jurisdiction under Article 227 of the Constitution of India, aggrieved against the order 17.11.2022 (Annexure P-8) passed by the Executing Court whereby it ordered issuance of warrants of arrest of the petitioners (JDs), for their failure to put in appearance despite being served notice of the application under Order 21 Rule 37 of Code of Civil Procedure, 1908 (for short ‘the CPC’).

2. At the very outset, learned counsel on instructions, submits that the petitioners seek indulgence of this Court for grant of an opportunity to put in appearance before the proceedings pending before the Executing Court and also to take appropriate steps for setting aside of the exparte decree, as may be permissible in law. It is further submitted that the petitioners have not intentionally avoided submitting to the jurisdiction of the Court, but it was only on account of not having been served in the due manner prescribed by law. The petitioners had no notice of the said proceedings and as such did not come to know of pendency of the proceedings before the trial Court or before the Executing Court.

3. A perusal of the case file shows that M/s Murli Trading Company (plaintiff-respondent) had filed a suit for recovery of Rs.84,800/- (Rs.71,865/- as principal amount and Rs.12,935/- as interest at the rate of 1% per month calculated for the period 28.09.2016 to 19.03.2018) on the basis of account books maintained by the plaintiff. In the said proceedings, the defendants (petitioners herein) were proceeded exparte vide order dated 04.09.2018 (Annexure P-1). Accordingly, in the said proceedings an exparte decree was passed on 11.12.2018. In execution of the said decree for a sum of Rs.1,04,100/-, the Executing Court issued notice to the petitioners on an application filed under Order 21 Rule 37 CPC, seeking the judgment debtors to be detained in civil imprisonment.

4. Learned counsel for the petitioners submits that pursuant to the impugned order, the warrants of arrest have not be executed as yet. Now, the next date before the Executing Court is 10.04.2023 for which fresh warrants are being issued. He undertakes to put in appearance before the Executing Court on the said date, or as may be directed by this Court and their liberty be protected till then, as their intention is not to avoid submitting before the jurisdiction of the Executing Court, but the default occurred as they were genuinely not aware of the said proceedings. It is only when the local police started visiting the house of the petitioners, enquiring about their whereabouts that it transpired that the impugned order had been passed by the Executing Court, which was sought to be effected. Without any loss of time, the petitioners have sought indulgence of this Court by way of the present petition.

5. The relevant provisions under the rules in Order 21 CPC that need to be noticed, are–

“Arrest and detention in the civil prison

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 satis