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Revision Application No.103 of 1982, heard on 19th April,1987.

‑‑‑S.51 & O.XXI, Rr.37 & 40‑‑Arrest of judgment‑debtor‑‑Procedure.

Order XXI, Rule 40, C.P.C. provides for procedure after the judgment‑debtor appears before the Court in obedience of notice issued under Order XXI, rule 37, C.P.C. to show cause why he should not be arrested. It requires that when the judgment‑debtor appears before the Court, the Court shall proceed to hear the decree‑‑holder and take all such evidence as may be produced by him in support of the application for execution and shall then give judgment‑debtor an opportunity for showing cause why he should not be committed to civil prison. Before ordering the arrest of the judgment‑debtor the Court has to be satisfied by decree‑holder by way of evidence showing that the grounds as laid down in the proviso to section 51 do exist for issue of writ of arrest. The mere fact that on the date fixed for such hearing the judgment‑debtor does not appear or does not lead any evidence would not absolve the decree‑holder from leading evidence as required under Order XXI, Rule 40 to satisfy the Court about the existence of such grounds. The Court has also to record reasons in writing of such satisfaction.

A I R 1955 All. 402 and A I R 1957 Mad. 761 rel.

‑‑‑Art. 182 [deleted by Law Reforms Ordinance (XII of 1972) ]‑‑Civil Procedure Code (V of 1908), S. 48 [before amendment by Law Reforms Ordinance (XII of 1972)], Ss. 51, 115 & O.XXI, R.40‑‑Execution application whether filed before amendment of S.48, C.P.C. and before deletion of Art. 182, Limitation Act, not ascertainable‑‑High Court declined to decide question of limitation for lack of relevant documents on file‑‑Orders of arrest of judgment‑debtor having been passed without compliance with mandatory provisions of law, case was remanded back to executing Court to hear parties in accordance with law‑‑Question of limitation could be agitated before Trial Court on basis of documents on file‑‑Order of arrest of judgment‑debtor being not in consonance with requirements of law was set aside by High Court in revisional jurisdiction.

Hakim Ali Siddiqui for Petitioner.

Sultan Ahmed Shaikh for Respondent.

Date of hearing: 19th April, 1987.

This revision application is filed against the order passed by the learned executing Court viz. First Additional District Judge Hyderabad in Execution Application No.108 of 1973.

The facts of the case are that District Judge Hyderabad in a suit under Order XXXVII, C.P.C. passed a decree in sum of Rs.6,484.73 plus interest and cost on 1‑4‑1965. The decree‑holder/respondent filed application for execution of decree on 3‑3‑1971 requesting for execution of decree by way of attachment and sale of the house of the applicant/ J.D. This application was pending in the Court when application was moved for execution by way of arrest of the J. D. Notice was issued to the J.D. but he failed to appear on the date of hearing and, therefore, the learned executing Court passed the order of issue of warrants of arrest. The application moved by Judgment/Debtor for recalling the order was also dismissed by the learned Court vide order dated 3‑2‑1982.

The learned counsel for the applicant/J.D. has raised two issues. He contends that order of arrest of the J.D. has been passed by the learned Court without complying with provisions of section 51, C.P.C. Secondly it is contended that the execution application was time‑barred.

The order under which warrants were ordered to be issued against the J.D., may be reproduced below:‑-----

"Advocate for Decree‑holder is present. J.D. and his Advocate are absent. On the last date of hearing last chance was given to the J.D. but he did not attend the Court. No reply to show‑cause notice filed. As such issue warrant of arrest against J.D. on cost and expenses as per rule."

"Put up after 9‑1‑1982."

The application for recalling this order was also dismissed on the ground that no reasons or cause has been shown by J.D. for non‑appearance and that he was trying to delay the proceedings.

Proviso to section 51, C.P.C. reads as under:‑---

"Provided that, execution by detention in prison shall not be ordered unless, after giving the judgment‑debtor an opportunity of showing cause why he should not be committed to prison, the Court for reasons recorded in writing, is satisfied‑‑

(a) that the judgment‑debtor, with the object or effect of obstructing or delaying the execution of the decree‑‑

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property or committed any other act of bad faith in relation to his property; or

(b) that the judgment‑debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment‑debtor was bound in a fiduciary capacity to account."

From the order of arrest as reproduced above it will be clear that the Court has not recorded any reasons for being satisfied that the aforesaid grounds exist for issue of writ of arrest. Order XXI Rule 40 provides for procedure after the Judgment‑debtor appears before the Court in obedience of notice issued under rule 37 to show cause why he should not be arrested. It requires that when the Judgment- debtor appears before the Court, the Court shall proceed to hear the Decree‑holder and take all such evidence as may be produced by him in support of the application for execution and shall then give J. D. an opportunity for showing cause why he should not be committed to civil prison. Reading this rule with section 51 it will be clear that before ordering the arrest of the Judgment‑debtor the Court has to be satisfied by decree‑holder by way of evidence showing that the grounds as laid down in the proviso to section 51 do exist for issue of writ of arrest. The mere fact that on the date fixed for such hearing the Judgment debtor does not appear or does not lead any evidence would not absolve the Decree‑holder from leading evidence as required under Order XXI, Rule 40 to satisfy the Court about the existence of such grounds. The Court has also to record reasons in writing of such satisfaction. The only reason that appears to have weighed with the Court in the instant case was the absence of the Judgment‑debtor on the date of hearing. Such an order is not sustainable under the law as it is not in conformity with the mandatory provisions of the law. Reliance is placed on A I R 1955 All. 402 and A I R 1957 Mad. 761. In Madras case it is held as under:‑---------

"The mandatory provisions of section 51 must be complied with before arrest is ordered. Where the lower Court does not say that in its opinion the judgment‑debtor has had, since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and has refused or neglected to pay the same, the order of arrest is illegal and has to be set aside. Even when the order is passed ex parte, the provisions of the section must be complied with. Ex parte orders of arrest and orders of arrest after contest are exactly on the same footing and section 51 makes no difference whatever between the two cases."

On the second point it is contended by the learned counsel that according to the execution application the decree was passed on 1‑4‑1965 and no application for execution had been filed earlier to the one filed on 3‑3‑1971. It is contended that this execution application was filed before the amendment of section 48, C.P.C. as well as before the deletion of Article 182 of the Limitation Act and as such the provisions of law as existed before the amendment would be applicable to the present application. Under Article 182 as it existed at that time execution had to be filed within three years from the date of decree. It is contended by the learned counsel for the respondent/Decree‑holder that date of decree would be date on which the decree was signed but that date cannot be ascertained as neither the original decree is before this Court nor the certified copy of the same has been produced by the applicant in this revision application. He has also pointed to the office note on the execution application which shows that execution application was in time and consequently it was ordered to be admitted. It appears that both the parties have not taken care to produce before this Court IE relevant documents for coming to decisive conclusion on this issue.

However, as order for issuance of writ of arrest of the applicant has been passed without compliance with the mandatory provisions of law the order of learned First Additional District Judge, Hyderabad is set aside and the case is remanded back to the executing Court to hear the parties in accordance with the provisions of Order XXI, Rule 40 C . P. C . and pass the order keeping in view section 51, C . P. C . The question of limitation may be agitated before the trial Court which will have all the relevant documents available with it to come to a correct finding on this point.

Under the circumstances of the case the parties are directed to bear their own costs.

A.A. /M‑87/K Case remanded.

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