1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 4952 OF 2009 Janata Fruit Company Jalgaon Through its Proprietor Shri. Baccharam s/o. Sodarmal Wadhwani, Age 63 yrs., Occu. Nil, R/o. Raipur, Chhatisgarh. ....Petitioner. Versus Jalgaon Phal and Bhajipala Vikri Sahakari Sanstha Ltd. Jalgaon, Through its Manager, Atul s/o. Sharad Rane, Age 37 yrs., Occu. Service, R/o. 286, Baliram Peth, Jalgaon, Dist. Jalgaon. ....Respondent. Shri. S.B. Yawalkar, Advocate for petitioner. Shri. Deelip Bankar-Patil h/f. Shri. P.B. Salunke, Advocate for respondent. CORAM : R.K. DESHPANDE, J. DATE : 9th June, 2010. ORAL JUDGMENT : 1. This writ petition challenges the order passed below Exh. 17 in Special Darkhast No. 83/2006 by the IInd Joint Civil Judge, Senior Division, Jalgaon on 17.2.2009, making the notice under Order 21, Rule 37 absolute and further passing an order that the judgment debtor be arrested and shall be taken in civil prison for the period of one month from the date of execution of arrest warrant. The judgment debtor has filed the instant writ petition, challenging the said order. 2 2. Notice before admission was issued by this Court on 27th August 2009. Shri. Bankar-Patil holding for Mr. P.B. Salunke, learned counsel appears for respondent sole. The learned counsel for parties agree that the matter may be finally disposed of at the stage of admission. Hence, Rule, made returnable forthwith. Heard the matter with consent of parties. 3. The petitioner is the judgment debtor and the decree has been passed against him on 31.5.2006 in C.C.No. 641/2004. The decree was for an amount of Rs. 2,33,680/- plus interest. The decree holder filed Special Darkhast No. 83/2006, in which an application under Order 21, Rule 37 was filed for the arrest and detention of the judgment debtor in civil prison. It seems that after hearing the parties, the executing Court has passed an order dated 17.2.2009, making the notice absolute and further directing that the judgment debtor be arrested and detained in civil prison for a period of one month from the date of execution of arrest warrant. 4. The findings recorded by the executing Court are that the decree was passed on 31.5.2006 and the judgment debtor was aware that arbitration case i.e. C.C.No. 641/2004 was filed before the Co-operative Court, Jalgaon. But, in spite of that he sold the property situated at Raipur in the State of Chattisgardh on 25.6.2004 for an amount of Rs. 3 3,79,872/-. However, the details of sale were not stated by the judgment debtor. It has further been held that the judgment debtor has transferred his business in the name of "Onkar Fruit Company" alongwith its goodwill to one Khialdas Chandnani, resident of Raipur. But, the details of amount of sale have not been stated. It has further been held that the intention of the judgment debtor appears to be mala filed and hence, an order was passed under Order 21, Rule 37 of Code of Civil Procedure for arrest and detention of the judgment debtor in civil prison. 4. Shri. Yawalkar, the learned counsel for the petitioner has invited my attention towards Order 21, Rule 37 which requires notice tobe issued to the judgment debtor, before issuing arrest warrant to show cause as to why he should not be arrested and detained in civil prison. He does not dispute that such a notice was issued, however, he urges that there is no evidence led nor affidavits were filed on record to show that the judgment debtor had means to pay the decreetal amount or any substantial part thereof and yet the judgment debtor has refused or neglected to pay the same. He relies upon the decision of the Apex Court reported in AIR 1980 SC 470 in the case of Jolly George Varghese and another vs. The Bank of Cochin and decision of this Court reported in 2005 (Supp.) Bom. C.R. 666 in the case of Sanjay Mahendra Pawar Vs. Malegaon Municipal Corporation and another. He submits that there is no finding recorded by the Court that the property was sold by the judgment debtor with an object to delay the effect of the execution of the 4 decree or the judgment debtor was likely to abscond or leave the local limits of jurisdiction of the Court. He therefore submits that the executing Court has exercised jurisdiction with material irregularities resulting in failure of justice. 5. Shri. Bankar-Patil holding for Shri. Salunke, the learned counsel appearing for respondent has urged that the executing Court has recorded finding that the intention of the judgment debtor appeared to be mala fide in selling the property on 25.6.2004 located at Raipur and further transferring the business for valuable consideration without disclosing these facts to the executing Court. He further submits that a show cause notice was given to the judgment debtor and he has failed to avail the opportunity and hence, the executing Court was right in passing the order. He thus supported the order passed by the executing Court which is impugned in the present petition. 6. After going through the order impugned in this writ petition, it is apparent that there is no finding recorded by the Court that the decree holder has established that the judgment debtor had means to pay the decreetal amount or any substantial part thereof and yet the judgment debtor has either refused or neglected to pay the same. The question, whether the property sold on 25.6.2004 i.e. before passing of the decree on 31.5.2006 was intentional with a view to avoid the execution of decree and payment of amount, has also been considered. There is no finding 5 recorded that the judgment debtor was likely to abscond or leave the local limits of jurisdiction of Court. The decree holder has not filed any affidavit nor has led any evidence on record. Passing of an order of arrest and detention in civil prison is a drastic step and takes away the liberty of the person. Hence, the provision of Order 21, Rule 37 are required to be complied with scrupulously to see that the same is at least substantially complied with. Although the Trial Court has adverted to the judgments cited supra, the same needs reconsideration by the Trial Court. 7. In view of above, there is no option, but to set aside the order dated 17.2.2009 passed by the executing Court which is impugned in the present petition, on the ground that it is vitiated by the error of jurisdiction i.e. the Trial Court has exercised jurisdiction with material irregularities resulting in failure of justice and the matter needs to be remanded to the Trial Court to decide it afresh after permitting the parties to lead evidence either by way of filing affidavits or otherwise, as contemplated by the provision. 8. In the result, the instant writ petition succeeds. The order dated 17.2.2009 passed by the IInd Joint Civil Judge, Senior Division, Jalgaon below Exh. 17 in Special Darkhast No. 83/2006 is hereby quashed and set aside and the matter is remitted to the Trial Court for deciding afresh in accordance with law and for that to permit the parties to add pleadings 6 and lead evidence, if any. No order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp4952.09