1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7532 OF 2008 1 Bajaranglal s/o Zumbarlal Sarda age 54 years, occ. business r/o Sarda Line, Ahmednagar. 2 Brijlal s/o Zumbarlal Sarda age 57 years, occ. business r/o Sarda line, Ahmednagar. 3 Madhusudan s/o Zumbarlal Sarda age 50 years, occ. business r/o Sarda Line, Ahmednagar. 4 Laxminiwas s/o Zumbarlal Sarda age 46 years, occ. business r/o Sarda Line, Ahmednagar. .. PETITIONERS VERSUS 1 M/s Parekh Textile a proprietary concern through its Proprietor Shri Rajesh Narayandas Parekh age 57 years, occ. business r/o 9, Rishi Dayanand Society Dodabai Crossed road, 3, Ville Parle West, Bombay. 2 Sarda Cloth Stores Sarda Galli, Ahmednagar. .. RESPONDENTS 2 Mr. A.S. Bajaj, Advocate for the petitioners. Mr. S.V. Gangapurwala, Advocate for respondent no.1. WITH WRIT PETITION NO. 7533 OF 2008 1 Bajaranglal s/o Zumbarlal Sarda age 54 years, occ. business r/o Sarda Line, Ahmednagar. 2 Brijlal /so Zumbarlal Sarda age 57 years occ business r/o Sarda Line, Ahmednagar 3 Madhusudan s/o Zumbarlal Sarda age 50 years, occ. business r/o Sarda Line, Ahmednagar 4 laxminiwas s/o Zumbarlal Sarda age 46 years, occ. business r/o Sarda Lane, Ahmednagar. .. PETITIONERS VERSUS 1 M/s Parekh Textile a proprietary concern through its Proprietor Shri Rajesh Narayandas Parekh age 57 years, occ. business r/o 9, Rishi Dayanand Society Dodabai Crossed road, 3, Ville Parle West, Bombay. 3 2 Sarda Cloth Stores Sarda Galli, Ahmednagar. .. RESPONDENTS Mr. A.S. Bajaj, Advocate for the petitioners. Mr. S.V. Gangapurwala, Advocate for respondent no.1. ===== CORAM : R. M. BORDE, J. DATE : 19 th November, 2009 ORAL JUDGMENT : 1 Heard. 2 Rule. With the consent of the parties, the matters are taken up for final disposal at admission stage. 3 Petitioners in these petitions are challenging the order passed by the learned Principal District Judge, Ahmednagara below exh. 35 in Arbitration Darkkhast no. 9/2006 and 10/2006. 4 Respondent herein claims to have secured award in respect of recovery of amount of Rs.68,120/- alongwith interest at the rate of 18% per annum and further award in respect of recovery of amount of Rs.1,77,029/- 4 alongwith interest at the rate of 18% per annum against M/s Sarda Cloth Stores, Ahmednagar. Respondent no. 1 after securing award against the firm presented two separate Arbitration Applications bearing no. 9/2006 and 10/2006 claiming recovery of amount of Rs.74,299/- and Rs.2,95,193/- respectively. An application came to be presented by the decree holder in pending execution darkhast seeking impleadment of the petitioners herein as parties to the darkhast proceedings. At the same time, respondent no. 1 presented application at exh. 22 in both darkhast proceedings seeking order in respect of issuance of arrest warrant against the petitioner. District court allowed the applications by order dt. 4-8-2008 by recording a cryptic order directing issuance of arrest warrant against the petitioners herein on deposit of process charges by the decree holder. Petitioners herein presented applications at exh. 35 in both the proceedings requesting the executing court to withdraw the order in respect of issuance of arrest warrant. In the application, petitioners contend that decree holder has presented application in both darkhast proceedings at exh. 6 seeking impleadment of petitioners herein as judgment debtors. Said applications are yet to be decided. Petitioners herein caused suo motu appearance in the proceeding and opposed the application by filing their say. Applications at exh. 6 seeking impleadment of the petitioners herein as 5 judgment debtors in darkhast proceeding remain undecided and inspite of such situation, they are added as party to the darkhast proceeding. Order passed by the executing court directing issuance of arrest warrant against the petitioners, in these circumstances, is irregular and uncalled for. Grievance is also made by the petitioners in application exh. 35 in respect of failure to observe procedure prescribed under provisions of Order XXI Rule 37 to 40 of the Code of Civil Procedure. Executing court on receipt of application at exh. 35 tendered by the petitioners herein initially directed stay of execution of arrest warrant. Applications tendered by the petitioners were taken up for consideration and after hearing arguments of the contesting parties, the learned Principal District Judge was pleased to reject the applications in both darkhast proceedings and directed execution of arrest warrant in view of order dt. 8-12-2008. 5 I have perused the applications as well as order passed by the executing court and hard arguments advanced by learned counsel for the respective parties. Mr. Bajaj, learned counsel for the petitioners contends that the petitioners have no concern with the award in question which is secured against M/s Sarda Cloth Stores, a prtnership firm. It is contended that merely because somebody informs the bailiff and presents the 6 document will not be in itself sufficient to hold the petitioners responsible for discharging the liability earmarked against the firm. It is the contention of the petitioners that they cannot be held responsible for satisfying the liability arrived at in the award passed against the firm. Before impleadment of the petitioners to the darkhast proceedings, they were required to be heard and the executing court has committed a mistake in entertaining the applications tendered by the decree holder for issuance of arrest warrant against the petitioners herein without deciding the application at exh. 6 seeking impleadment of the petitioners herein in the darkhast proceedings. Infact, impleadment of the petitioners in the proceedings itself is illegal which renders subsequent order in respect of issuance of arrest warrant against them illegal. The learned counsel also contends that once the party caused appearance before the court, the executing court was not justified in directing to proceed for executing the arrest warrant without observing he procedure prescribed under Ruel 40 of Order XXI of the Code of Civil Procedure. Learned counsel for the petitioner also points out that the award on its face appears to be illegal and cannot be put to execution before the executing court. it is also contended that the court below ought to have first of all ascertained as to whether the petitioners are infact liable for discharging the liability of the firm and then could have issued directions to 7 proceed against them. Order passed by the trial court, according to the petitioners is illegal and liable to be quashed and set aside. 6 Learned counsel for the respondents has supported the order passed by the executing court. According to the respondents, the petitioners herein being the former partners of the firm have agreed to discharge liability under an agreement reached between the partners of the firm which has been reduced into writing. The partners of the firm themselves have handed over the document i.e. copies of the agreement and consent letters to the bailiff which reveal that the petitioners herein are responsible for discharging the dues recoverable under the award. According to learned counsel for the respondents, the petitioners herein cannot escape from the liability and as such the order passed by the executing court is legal and proper. 7 The first and the foremost thing that is required to be taken note of is that application exh. 6 came to be presented by the decree holder in pending execution proceedings requesting the court to implead the petitioners herein as party to darkhast proceedings. However, without securing any order on application at exh. 6, the petitioners were impleaded 8 in darkhast by making amendment by the decree holder. It is surprising to as to how the executing court permitted the decree holder to carry out amendment permitting impleadment of the petitioners herein as the judgment debtors. Impleadment of the petitioners as judgment debtors in the pending darkhast proceedings itself is without any basis and it was incumbent upon the executing court to first deal with the application at exh. 6 and only after issuance of order in respect of impleadment of the petitioners herein, they can be called upon to satisfy liability arising out of decree or award. Firstly, the executing court is not expected to rule on the liability accruable against the petitioners on the basis of certain document handed over to bailiff by the alleged partners of firm. Enquiry has to be made in respect of the genuineness and correctness of the document and specially when the liability arising under the the document in question is controverted by the petitioners. The executing court appears to have passed the orders merely on perusing the application presented by the decree holder without verifying the correctness of the contentions raised therein and without proceeding to enquire into the contentions raised in the application after extending an opportunity of hearing to the petitioners. Correctness or otherwise of the contentions raised in the application tendered by the decree holder is required to be ascertained by the Judge 9 before passing any order. Executing court as such is expected to decide the issue in respect of impleadment of the petitioners in darkhast proceedings and thereafter shall have to take up the applications tendered by decree holders for consideration. 8 Order passed by the trial court directing issuance of warrant of arrest against the petitioners is also unsustainable. Firstly, the learned Principal District Judge proceeded to pass a single line order on 4-8-2008 directing issuance of warrant against the petitioners. A perusal of the order does not lead to any inference as regards application of mind by the learned Judge. On consideration of the application at exh. 35 presented by the petitioners herein, the same order is confirmed by the executing court. The executing court has turned a blind eye to the provisions of Rules 37 to 40 of Order XXI of the Code of Civil Procedure before directing issuance of arrest warrant against the petitioners. Executing court is empowered to issue warrant of arrest where the decree is for payment of money. Rule 37(2) of Order XXI of the Code of Civil Procedure empowers the court to issue warrant of arrest against the judgment debtors where the judgment debtor fails to cause appearance in disobedience of the notice. However, in the instant matter, it appears that the judgment debtors have suo motu caused their 10 appearance and have resisted the application at exh. 6 seeking their impleadment in the darkhast proceedings. The situation contemplated by Rule 37 of Order XXI of the Code of Civil Procedure has not arisen. Rule 40 of Order XXI of the Code of Civil Procedure provides that when the judgment debtor appears before the court in obedience to the notice issued under Rule 37 of Order XXI of the Code of Civil Procedure, or is brought before the court after being arrested in execution of the decree, the court shall proceed to hear the decree holder and take all such evidence as may be produced by him in support of his application for execution and shall then give the judgment debtor an opportunity of showing cause as to why he should not be committed to civil prison. In the instant matter, the judgment debtors have caused their appearance before the court and as such it was incumbent upon the court to proceed to record evidence of the decree holder and then after giving an opportunity of hearing to the judgment debtors, proceed to pass order. Once the judgment debtors cause their appearance before the executing court, the executing court is not expected to direct issuance of arrest warrant. The purpose of issuance of arrest warrant has already been achieved by securing presence of the judgment debtors. The learned Judge of the executing court was therefore expected to hear both the parties concerned and then pass necessary 11 order. In the instant matter, order passed by the learned Principal District Judge is erroneous and therefore there is no other alternative except to quash and set aside the same. In the result, both the petitions succeed. The impugned common order passed below exh 35 in Arbitration Darkhast nos. 9/2006 and 10/2006 is quashed and set aside. The executing court is directed to deal with the application at exh. 6 first and then proceed to pass orders in execution application after extending opportunity of hearing to petitioners and in accordance with provisions of law. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.) dyb/office/wp7532.08.odt