Advocates:
['ABHIJEET KAMAT', 'ADV M S JOSHI', '', 'ADV M S JOSHI']

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IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 390 OF 2012

Shri Sanjay Kerkar,

Major of age,

r/o. H. No. 282, Naikwadda, Velha,

Canca, Mapusa, Bardez, Goa.

…...

Petitioner

V e r s u s

M/s. Narcinva Damodar Naik,

A registered partnership firm with

Office at House no. 11, V. N. Naik Road,

Fatorda, Margao, Goa, through its partners :

a) Shri Damodar Narcinva Naik,

Son of Narcinva Damodar Naik,

Major of age, r/o. H. No. 25,

'Saket', Monte Hill, Margao, Goa.

b) Shri Narcinva Damodar Naik,

Son of Damodar Narcinva Naik,

Major of age, r/o. H. No. 25,

'Saket', Monte Hill, Margao, Goa.

…...

Respondents

Mr. S. S. Kantak, Senior Advocate with Mr. A. Kamat and Mr. P. Talaulikar,

Advocates for the Petitioner.

Mr. M. S. Joshi, Advocate for the Respondents.

Coram

:-

F. M. REIS, J

Date :

22

^nd November, 2012.

ORAL JUDGMENT

Heard Shri S. S. Kantak, learned Senior Counsel appearing for the

Petitioner and Shri Joshi, learned Counsel appearing for the Respondents.

2.

Rule. Heard forthwith with the consent of the learned Counsel.

Learned Counsel appearing for the Respondents waives service.

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3.

The short point that comes for consideration before this Court is

whether the learned Trial Court was justified to direct the detention of the Petitioner

by the Order dated 26.03.2012 for simple imprisonment for a period of six months

in terms of the provisions of Order 21 Rule 37 of the Civil Procedure Code. Both

the learned Counsel do not dispute that the said Order has been passed in terms of

the provisions of Order 21 Rule 37 of the Civil Procedure Code.

4.

Order 21 Rule 37 of the Civil Procedure Code provides thus :

“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 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.]

(2) Where appearance is not made in obedience to

the notice, the Court shall, if the decree-holder so

requires, issue a warrant for the arrest of the

judgment-debtor.”

5.

On plain reading of the provisions of Order 21 Rule 37 of the Civil

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Procedure Code, no doubt, it is the discretion of the Court to direct the detention of

the Judgment Debtor but in specific situations.

6.

Shri Joshi, learned Counsel appearing for the Respondents, fairly

concedes that there were no specific averments in the application filed by the

Respondents to the effect that the Judgment Debtor was likely to abscond from the

jurisdiction of the Court. Considering the said aspect, it was not open to the

learned Judge to invoke the provisions of Order 21 Rule 37 of the Civil Procedure

Code to direct the detention of the Judgment Debtor. Hence, on such short point,

the impugned Order deserves to be quashed and set aside.

7.

Be that as it may, it cannot be disputed that under provisions of Order

21 of the Civil Procedure Code, there are specific powers to direct the detention in

civil imprisonment of the Judgment Debtor for recovery of money in specific

situations. At this stage, Shri Joshi, learned Counsel appearing for the

Respondents, pointed out that the Respondents will file an appropriate application

on that count and, thereafter, a show