THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.1795 of 2011 Date: 25.11.2011 Between: Mr. V.N. Subhash Chandra Bose, Hyderabad. … Petitioner/ Judgment debtor AND G. Shankar, Hyderabad, … Respondent/ Decree Holder THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.1795 of 2011 ORDER: The execution Court ordered for the arrest of the judgment debtor and production of the same before the Court. Assailing the order dated 24.03.2011 in E.P.No.17 of 2011 in O.S.No.1632 of 2007 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad, the judgment debtor laid the present revision. 2. Sri H. Yogesh Kumar, learned counsel for the decree holder contended that the judgment debtor has been preventing the decree holder from executing the decree for eviction and recovery of arrears of rent by one method or another and by inducing his henchmen to file claim petitions. On the other hand, Sri L. Ravichandar, learned counsel for the judgment debtor contended that the question is whether the order of arrest of the judgment debtor by the execution Court is proper or otherwise and not whether the judgment debtor has been creating hurdles in the execution of the decree. The decree holder initially laid an execution petition for recovery of possession. It was followed by a claim petition. It is the contention of the learned counsel for the decree holder that the claim petition was engineered by the judgment debtor. The decree holder filed a second execution petition in E.P.No.40 of 2010, which was later renumbered as E.P.No.26 of 2011. It was an execution petition for recovery of the decretal amount and also for attachment of the properties. The field assistant would appear to have attached the EP schedule properties in that case. Again it was followed by a claim petition. The decree holder once again contends that the claim petition was at the behest of the judgment debtor. 3. The decree holder laid third execution petition in E.P.No.17 of 2011. It was a petition for the arrest of the judgment debtor and for his confinement in civil prison. It is the contention of the decree holder that the judgment debtor received the notice and instead of appearing in person, he instructed a counsel to appear before the Court. Holding that the judgment debtor was evading to appear before the Court, the execution Court passed orders issuing warrant of arrest against the judgment debtor. It led to the present controversy. 4. Inter alia, it is the contention of the learned counsel for the decree holder that an opportunity, indeed, must be given to the judgment debtor and that the decree holder has not been disputing the same. His primary contention is that when notice under Order XXI Rule 37 IPC is issued, the judgment debtor should appear in person and the appearance of the judgment debtor through a counsel would not be tantamount to honouring the notice under Order XXI Rule 37 IPC. It may be noticed that Order XXI Rule 37 CPC contemplates that when execution petition is laid for the arrest of the judgment debtor and for detention of the judgment debtor in civil prison, notice should be given to the judgment debtor calling him to appear before the Court on a specified date. Order XXI Rule 37 (1) IPC does not ordain that notice should be given to the judgment debtor to appear in person or through a pleader. The Rule reads that the judgment debtor should be directed to appear before the execution Court on a given date. It is the contention of the learned counsel for the decree holder that when the judgment debtor receives notice, he shall appear before the Court and that there is no possibility for the judgment debtor to appear through a counsel. 5. In support of his contention, he placed reliance upon G.V.S. Suryanarayana v. T.N.V.S. Murthy[1]. It was observed in this case that appearance envisaged under Order XXI Rule 37 CPC as well as under Order XXI Rule 40 CPC is physical appearance and not appearance through an agent or a recognized agent. In view of the wording in Order XXI Rule 37 and Rule 40 CPC, I respectfully agree with this view. At any rate, Sri L. Ravichandar did not dispute this proposition that the judgment debtor should appear before the Court in person after receipt of notice under Order XXI Rule 37 CPC. 6. Sri H. Yogesh Kumar, learned counsel for the decree holder placed reliance upon Suravarapu Putrayya v. Maddukuri Veerraju[2]. In that case, it was observed that the judgment debtor shall appear in person on receipt of the notice under Order XXI Rule 37 CPC. The learned counsel for the judgment debtor, however, contended that notice was not served upon the judgment debtor and the question of judgment debtor deliberately not appearing before the Court, therefore, does not arise. 7. He placed reliance upon the famous Jolly George Varghese v. Bank of Cochin[3]. Inter alia, it was observed by V.R. Krishna Iyer, J in that case that notice should be served upon the judgment debtor under Order XXI Rule 37 CPC and that the judgment debtor shall thereafter make appearance before the Court. In M.V. Panduranga Rao v. A. Sattar Khan[4], this Court held that the arrest warrant was not a matter of course under Order XXI Rules 37 and 38 CPC and that the warrant of arrest could be issued after recording the reasons for the absence of the judgment debtor from the Court in response to the notice. 8. It is evident that arrest of the judgment debtor cannot be ordered under Order XXI Rule 37 CPC unless the judgment debtor is served with notice. Order XXI Rule 37 contemplates that warrant of arrest can be issued if the judgment debtor did not obey the notice to appear before the Court. The learned counsel for the judgment debtor contends that the question of disobeying notice by the judgment debtor did not arise, as the notice was not served upon him. The learned counsel for the decree holder, on the other hand, contended that the notice was served upon him and that the judgment debtor indeed entered appearance on 24.03.2011. 9. The impugned order records the presence of Sri Milind G. Gokhale as filing Vakalat on behalf of the judgment debtor. Sri L. Ravichandar submitted that the judgment debtor never received notice under Order XXI Rule 37 CPC in E.P.No.17 of 2011. His contention is that the judgment debtor engaged Sri Milind G. Gokhale in connection with E.P.No.40 of 2010 and in E.P.No.88 of 2009 and that when Sri Milind G. Gokhale was present in the Court, E.P.No.17 of 2011 was called, so much so, Sri Milind G. Gokhale reported that he was taking notice on behalf of the judgment debtor. The case of the judgment debtor thus is that the judgment debtor did not have any notice in E.P.No.17 of 2011. 10. It would appear that the Court records did not show that the judgment debtor was served with notice. At any rate, where Sri Sri Milind G. Gokhale represents the judgment debtor as on today, the hurdle of issuing notice under Order XXI Rule 37 CPC does not arise. I, therefore, consider that it is a fit case where the warrant of arrest, as ordered by the execution Court, is liable to be set aside and to remit the case to the execution Court with a direction to the judgment debtor to appear on a given date and with a request to the execution Court to dispose of the E.P. expeditiously. 11. Where notice under Order XXI Rule 37 CPC is not proved to have been served upon the judgment debtor, the Civil Revision Petition is allowed setting aside the impugned orders dated 24.03.2007 in E.P.No.17 of 2011. However, it is admitted that the judgment debtor had notice by 24.03.2011. The judgment debtor accordingly shall appear before the execution Court on 16.12.2011. Both sides are informed that the execution Court would take up the case on 16.12.2011 and that the judgment debtor shall make his appearance in person in response to the notice under Order XXI Rule 37 CPC in E.P.No.17 2011 on 16.12.2011. After the appearance of the judgment debtor, the execution Court shall produce with and decide E.P.No.17 of 2011 on merits. The execution Court is indeed at liberty to proceed with the case if the judgment debtor is absent on 16.12.2011 and proceed with the determination of the execution petition. The execution Court is reminded that it is fairly old suit and that there is need to dispose of the E.P. expeditiously. The learned counsel on both sides are informed that they should direct their respective parties i.e., judgment debtor and decree holder to appear before the execution Court on 16.12.2011. There shall, however, be no order as to costs. _________________ K.G. SHANKAR, J Date: 25.11.2011 Isn [1] AIR 2006 AP 278 [2] 1964 (2) An.W.R. 38 [3] AIR 1980 SC 470 [4] 1999 (5) ALT 471