IMPORTANT POINT
The executing court must follow procedural safeguards before detaining a judgment-debtor in civil prison, including conducting an inquiry and recording reasons.

ORDER :

This petition under Article 227 of the Constituting of India has been preferred by the petitioner/judgment-debtor being aggrieved by the order dated 8-9-2023 passed by the First Civil Judge, Senior Division, District Shajapur in execution Case No. B-8/2015, whereby an application under Order 21, Rule 37 of the Civil Procedure Code preferred by the respondent/decree holder has been allowed and he has been directed to be sent to civil prison.

2. The facts in brief are that the decree holder instituted Civil Suit No. 04B/2014 against the judgment-debtor for recovery of a sum of Rs.1,03,000/-. By judgment and decree dated 12-12-2014 the same was decreed by the trial Court and the judgment-debtor was directed to pay a sum of Rs. 1,03,000/- to decree holder along with interest at 6% per annum from the date of institution of the suit. The judgment-debtor failed to do so hence the decree holder instituted proceedings before the executing Court for execution of the aforesaid decree.

3. In the execution proceedings, a warrant of attachment was issued in respect of the immovable properties of the judgment-debtor. When the warrant was tried to be executed, wife of the judgment-debtor caused obstruction in the attachment and stated that she will not permit the property to be attached. Upon receipt of the attachment warrant before the executing Court, the decree holder filed an application under Order 21, Rule 37 of the Civil Procedure Code for sending the judgment-debtor to civil prison which has been allowed by the executing Court by the impugned order.

4. Learned counsel for the judgment-debtor has submitted that the executing Court has exceeded its jurisdiction in passing the impugned order. On 13-7-2022, a notice was issued to the judgment-debtor under Order 21, Rule 37 of the Civil Procedure Code for sending him to civil prison. In response he had appeared before the executing Court and had filed his reply giving reasons in detail as to why he should not be sent to the civil prison. The prayer of the judgment-debtor was not adverted to by the executing Court, which has straightaway passed the impugned order without considering the financial feasibility of the judgment-debtor and without conducting suitable enquiry as regards the documents submitted by him along with his reply. It was mandatory for the executing Court to have conducted an enquiry as contemplated under Order 21, Rule 40 of the Civil Procedure Code which has not been done by it. It is hence submitted that the impugned order be set aside.

5. Per contra, learned counsel for the decree holder has submitted that no error has been committed by the executing Court in passing the impugned order. In execution of the decree, notice was issued to the judgment-debtor to show cause as to why he should not be sent to civil prison. He did not furnish any satisfactory reply to the same. When the warrant of attachment was being served on the house of judgment-debtor his wife had obstructed the same. There was hence no occasion for conducting any enquiry in the matter. No affidavit or evidence was adduced by the judgment-debtor to show that he is living below the poverty line and that he is not possessed of any property which may be attached. The executing Court has hence rightly passed the impugned order. The petition hence deserves to be dismissed.

6. I have considered the submissions of learned counsel for the parties and have perused the record.

7. The proceedings are for execution of a money decree passed by the trial Court. In those proceedings the judgment-debtor did not deposit any amount before the executing Court. In such circumstances, upon allowing an application filed by the decree holder on 8-8-2022 notice was issued to the judgment-debtor to show cause as to why he should not be sent to civil prison. On 18-8-2022, the judgment-debtor appeared through his counsel and filed reply to the notice. The executing Court has held that since judgment-debtor was served with the noti