IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14590 of 2010 Kamleshwari Prasad Yadav @ Kamleshwari Yadav S/O Late Tisi Prasad Yadav R/O Chandra Nagar (Ranko), P.S.- Mufasil Khagaria, Distt.- Khagaria Versus Surendra Mohan Prasad S/O Late Sarjug Prasad R/O Vill.- Sanhauli, P.S. Chitragupta Nagar, Distt.- Khagaria -------------------------- 04/ 06.09.2011 Heard Mr. Dronacharya, learned counsel appearing on behalf of the petitioner and Mr. Shashi Shekhar Dwivedi, learned Senior counsel appearing on behalf of the sole respondent. The petitioner questions the order dated 15.5.2010 passed by the Munsif, Khagaria in Title Execution Case No. 4 of 2007, whereby the learned court below has dismissed the application filed by the petitioner on 15.5.2010 seeking stay of the order dated 3.4.2010 insofar as it seeks to issue warrant of arrest for ensuring the attendance of the petitioner. The petitioner is also aggrieved by the order whereby the learned Court below has been pleased to direct the decree holder-respondent herein to deposit subsistence allowance in terms of Order 21 Rule 39 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’). The facts leading to the present application, in brief, is that an eviction suit was filed by the sole respondent herein seeking eviction of the petitioner from the tenanted premises owned by the plaintiff-respondent. The suit in question was compromised on appearance of the petitioner on an undertaking being given by him of vacating the tenanted premises by 31.5.2007, failing which he would pay a compensation amount of Rs. 500/- per day until the date of 2 delivery of possession. The petition of compromise dated 13.1.2007 is placed at Annexure-1 and on the basis whereof a decree was passed on 7.2.2007 placed at Annexure-2 to the writ petition. It is the case of the petitioner that in terms of the undertaking given by him in the compromise petition dated 13.1.2007 he vacated the tenanted premise in question on 29.4.2007 and when he sought receipt from the plaintiff-respondent herein certifying his vacation from the tenanted property, the plaintiff-respondent herein refused to issue any such receipt and in which circumstances the petitioner filed an appropriate application before the Munsif, Khagaria in the Eviction Suit No. 3 of 2006 which was filed on 30.5.2007, copy whereof is placed on Annexure-3. Even while the issue in the light of the petition filed by the petitioner on 30.5.2007 could be taken to its logical conclusion, an execution case was filed by the plaintiff- respondent herein on 23.7.2007 giving rise to Execution Case No. 4 of 2007 seeking delivery of possession of the tenanted premises and for payment of amount of Rs. 500/- per day by the petitioner. It is not in dispute that pursuant to the court’s intervention possession of the tenanted premises, in a locked condition, was finally effected to the plaintiff-respondent on 20.11.2009 and evidence whereof is placed at Annexure-4. As according to the plaintiff-respondent the petitioner had defaulted in abiding by his undertaking given in the compromise petition of vacating the premise by 31.5.2007, he became liable for payment of compensation of Rs. 500/- w.e.f. 1.6.2007 until 20.11.2009 quantified at Rs. 4,52,000/-. A notice 3 was issued by the Executing Court to the petitioner, which returned with a remark ‘refused’. In these circumstances, an order came to be passed in Title Execution Case No. 4 of 2007 on 3.4.2010, whereby the Executing Court directed issuance of warrant of arrest against the petitioner for ensuring his attendance. The said order had been passed in the backdrop that the petitioner had refused to accept the notice and was not even appearing and thus the Court had no other option but to issue a warrant of arrest. The petitioner responded to the order dated 3.4.2010 by filing an application in the Title Execution Case No. 4 of 2007 with the prayer of recall of the order issuing warrant of arrest. The learned Executing Court by the impugned order dated 15.5.2010 has rejected the petition which was filed by the petitioner on the same day, praying for recall of the order dated 3.4.2010 and hence the present petition. Learned counsel for the petitioner makes a very short submission. He submits that even while it is yet to be determined as to whether or not the petitioner has defaulted in his undertaking given in the compromise petition dated 13.1.2007 in view of the pendency of his application filed before the trial court in Eviction Suit No. 3 of 2006 on 30.5.2007, the Executing Court has proceeded to order for arrest of the petitioner and has issued direction to the plaintiff-respondent herein for deposit of the subsistence amount for maintenance of the petitioner in the civil prison in terms of the provision of Order 21 Rule 39 of the Code. Learned counsel further submits that the Executing Court having partly appreciated the 4 submission of the petitioner of calling for records of the Eviction Suit No. 3 of 2006 in order to satisfy itself of the contention of the petitioner that he had vacated the tenanted premise as back as on 30.5.2007 and even without coming to a conclusion as to whether or not the petitioner had in fact defaulted in his undertaking, has proceeded to issue the impugned directions. It is thus contended that the order passed by the learned Executing Court for deposit of subsistence allowance by the plaintiff-respondent and of issuance of warrant of arrest is arbitrary and has been passed in a haste. Learned counsel for the sole respondent contesting the stand of the petitioner, submits that it is only in the circumstances where despite issuance of notice the petitioner did not cooperate with the Executing Court that the Executing Court had no other option but to pass appropriate orders in terms of the provision of Order 21 Rule 39 of the Code and for issuance of the warrant of arrest of the petitioner for ensuring his attendance and for adjudication on the issue and conclusion of proceedings. Having heard learned counsel for the parties and having perused the materials on record this Court, considering the legal position, is in no doubt about the jurisdiction and power vested in the learned court below under the provision of Order 21 for executing of a decree and for ensuring that a judgment debtor takes all possible steps to comply with the judgment and decree. Considering the present case in the background of the statutory provision of Order 21 of the Code, this Court is of the 5 opinion that the Executing Court in passing the impugned order dated 15.5.2010, has acted in a bit of haste, more particularly in view of the fact that the petitioner had filed his appearance and it is yet to be ascertained whether or not the petitioner has in fact defaulted in his undertaking of vacating the premises in question by 31.5.2007. Further a petition to the said effect is pending consideration before the trial court in Eviction Suit No. 3/06 and for verification whereof the Executing Court has also issued orders for production of the relevant records of Eviction Suit No. 3 of 2006. That being the position, the writ petition is disposed of with a direction to the Executing Court to proceed with the matter in accordance with law after affording reasonable opportunity to the petitioner to file his show cause in response to the application filed by the decree holder and allow him to lead his evidence in support of his contention that he has not defaulted from his undertaking made before the trial court in Eviction Suit No. 3 of 2006. The parties shall cooperate in the proceeding and the learned Executing Court would proceed on day to day basis without giving any undue adjournment to any of the parties. Until such time that the petitioner cooperates in the execution proceedings and the same reaches its logical conclusion, the learned Executing Court would not give effect to the order of issuance of warrant of arrest against the petitioner. S.Sb/- (Jyoti Saran, J.)