IMPORTANT POINT
Arrest warrant can be issued when in spite of sending the notice Judgment Debtor fails to make his appearance or deliberately involves in avoiding to receive the notice and attending the Court for the purpose of protracting the matter or not deciding the question of means. In such a case the question of giving him notice would not arise at all.

G. Krishna Mohan Reddy, J.— This civil revision is filed against docket order dated 3.10.2012 in E.P.No.56 of 2012 in O.S.No.218 of 2006 (E.P) on the file of the Court of II Senior Civil Judge, City Civil Court, Hyderabad.

2. The petitioner herein is the Judgment Debtor (J. Dr) and the respondent herein is the Decree Holder (D. Hr) in the E.P. For convenience sake, I refer the parties as they are arrayed in the E.P.

3. The E.P. was filed by the D. Hr under Order XXI Rules 37 and 38 of the Code of Civil Procedure, 1908 (CPC) to arrest and detain the J. Dr in civil prison for non-payment of amount of Rs.5,75,274. During the course of the proceedings in the E.P., the Court below passed the impugned order, which reads as follows. Memo submitted by counsel for Judgment Debtor. Memo is recorded. As per Order XXI Rule 40 CPC for conducting means enquiry the presence of Judgment Debtor is required. In spite of previous warrant and notice the Judgment Debtor did not appear in person before this Court. Hence issue warrant of arrest of Judgment Debtor under Order XXI Rule 37(2) CPC for conducting means enquiry. Call on 10.10.2012.

4. It is the contention of learned counsel for the J. Dr that the D. Hr has to pay subsistence allowance under Order XXI Rule 39 CPC as declared by the Presiding Officer of the Court to be sufficient. In fact such amount was not paid. Further it was not proper to issue warrant without notice to the J. Dr.

5. Learned counsel for the D. Hr submits that the suit was filed in 2006. Consequently the suit was decreed but the J. Dr has been involved in prolonging the matter by reason of which the D. Hr has been suffering great hardship. In fact in N. Ratan Babu v D. Atchutya Reddy CRP No.4752 of 2011, dated 28.11.20ll this Court in this case observed that when the arrest warrant was not being executed the Senior Civil Judge (concerned) should address the Commissioner of Police for the execution of it and that the E.P. should not be kept pending for unduly long period on that ground, while extending the time to do so by three months from the date of order dated 28.11.2012 to complete the formalities. He also has contended that by virtue of Order XXI Rule 37 where appearance is not made by a J. Dr in obedience to a direction given by a Court, such Court subject to its satisfaction can issue a warrant for the arrest of the J. Dr. According to him the Court below passed the order properly and there are no reasons to interfere with the same.

6. As seen from the record and also considering the contentions raised, it is very clear that the matter has been coming up since long time but he failed to attend before the Court to face the means enquiry properly and on the same ground earlier also the arrest warrant was issued for the presence of the J.Dr. As he failed to participate in the proceedings, the Court below was forced to issue the arrest warrant. Further the record also provides that he appeared or his counsel has been appearing for him in the case. Therefore, it cannot be said that in the E.P. proceedings, there was no notice to the J. Dr.

7. Further Order XXI Rule 37 enjoins 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