Due process must be followed in issuing arrest warrants under civil procedure; failure to do so invalidates the order.

Order:

This is a Civil Revision Petition filed by the revision petitioner/judgment debtor aggrieved by the order dated 25.04.2024 passed by the learned Senoir Civil Judge at Miryalaguda in E.P.No.16 of 2023, wherein, an order is passed in favour of the respondent/decree holder issuing Order 21, Rule 37 warrant and also Order 21, Rule 35 warrant against the revision petitioner/judgment debtor on payment of process fee.

2. The brief facts of the case are that the respondent/decree holder filed suit vide O.S.No.27 of 2016 for eviction and arrears of rent and said suit was decreed on 22.09.2022. Pursuant to the said judgment and decree, E.P.No.16 of 2023 is filed under Order 21, Rule 10, 11(2) and 35 of CPC for issuance of warrant of eviction from the suit schdeuel rpeoprty and to deliver possession under due process of law. Upon filing of counter and hearing both sides, the learned Trial Court passed the impugned order issuing arrest warrant under Order 21, Rule 37 of CPC along with a warrant under Order 21, Rule 35 of CPC for delivery of the suit schedule property. Aggrieved by the same, the present revision petition is preferred.

3. In grounds of revision, it is pleaded that there is no specific finding by the Trial Court about the revision petitioner having means to satisfy the decree but deliberately failed to do so. Further, the procedure contemplated for issuance of an arrest warrant against the revision petitioner is not observed. The prayer in the E.P is not under Order 21, Rule 37 of CPC, and therefore, issuance of said warrant is erroneous. Since arrest is likely to affect liberty of a person, the conditions set out under Order 21, Rule 37 have to be scrupulously followed. Hence, prayed that the revision petition be allowed and impugned order be set aside.

4. As per record, the Trial Court has decreed the suit for eviction and also ordered payment of arrears of rents. To realize the decree, E.P has been filed with relief sought under Order 21, Rule 10, 11(2) and Rule 35 of CPC, which is confined only to delivery of immovable property. The E.P in its contents contains the relief seeking arrest under Order 21, Rule 37 of CPC, but the same is not mentioned while filing the E.P and also in the prayer portion in the last paragraph of the E.P. Further, before issuing a warrant of arrest, there is a need to issue notice to secure appearance of the judgment debtor before the Court and call upon him to explain as to why he should not be committed to civil prison. Without following such a procedure, the E.P Court proceeded to order issuance of arrest warrant on payment of process fee. Since the procedure contemplated for issuance of arrest warrant was not observed, the impugned order is liable to tbe set aside.