1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CIVIL REVISION APPLICATION NO. 525 OF 2000 Satish s/o Ramchandra Shahapurkar, aged 45 years, occ. Nil., r/o Azad Chowk, Ghumbre Galli, Ahmednagar ...Petitioner (Orig.deft./J.D.) VERSUS Gorakshnath Madhavrao Pund, aged 39 years, occ. Service, r/o Maliwada, Ahmednagar ...Respondent (Orig.pltff./D.H.) ..... Shri V.S.Bedre, advocate for the petitioner None for the respondent, though served ..... Coram : Shrihari P. Davare, J. Date of reserving the judgment : 14.7.2009 Date of pronouncing the judgment : 17.7.2009 J U D G M E N T : 2 1 Perused and heard Shri V.S.Bedre, learned counsel for the petitioner. Nobody appeared for sole respondent although served. 2 This Civil Revision Application emerges out of the order passed by the learned Joint Civil Judge, Senior Division, Ahmednagar on Exh.24 in Special Darkhast NO. 64 of 1990 on 28.4.2000, thereby allowing the said application to detain the petitioner in civil prison. 3 Briefly stated, the petitioner herein is original judgment debtor/defendant and the respondent herein is the decree holder/plaintiff and the respondent filed Regular Civil Suit No. 626 of 1986 for recovery of the amount of Rs.21,925/- and the said suit was decreed on 23.4.1990 and the petitioner herein was directed to pay the said amount along with the interest at the rate of six per cent per annum to the respondent herein. 4 It is the contention of the petitioners that the respondent herein filed execution petition i.e. Special Darkhast No. 64 of 1990 for the recovery of decretal amount. In the said Darkhast, after return of warrant of attachment of movables, on the request of respondent , an order regarding issuance of notice under Order 21 Rule 37 of the Code of Civil Procedure was 3 passed. Thereafter, the respondent preferred an application dated 6.11.1999 and requested to reissue the said notice since it was returned unserved. The learned Judge passed order thereon on 2.12.1999 and thereby directed the respondent/decree holder to produce documents that judgment debtor is having means but avoiding to pay. 5 Thereafter, the respondent preferred further application on 7.1.2000 contending that the petitioner herein was not having movable or immovable property and further contending that he had preferred an application for warrant of arrest and notice thereof under Order 21 Rule 37 of the Code of Civil Procedure was issued to the judgment debtor/petitioner, but same was returned unserved and hence, prayed for reissuance of the said notice. Accordingly, the learned Judge passed an order on the said application on 21.1.2000 and directed to reissue notice as per the provisions of Order 21 Rule 37 of the Code of Civil Procedure on payment of process fee. 6 Thereafter, it is the further contention of the petitioner that the respondent preferred another application on 25.4.2000 contending that the petitioner herein has not paid the decretal amount and he has means to pay the said amount and although 4 the notice under Order 21 Rule 37 of the Code of Civil Procedure was served upon the petitioner, he avoided to make the payment of decretal amount to decree holder and, therefore, requested for issuance of arrest warrant to detain the petitioner in civil prison. The petitioner submits that he filed the say to the said application on 28.4.2000. However, without considering the said say and without following the due procedure prescribed under Section 55 of the Code of Civil Procedure, and more particularly, without following the procedure as prescribed under Order 21 Rule 40 of the Code of Civil Procedure, the learned Judge granted the said application on 28.4.2000. Being aggrieved and dissatisfied by the said order, the petitioner herein has challenged the correctness and legality of the said order in the present Civil Revision Application. 7 At the out set, it is seen that the respondent herein has made contradictory statements in the application dated 7.1.2000 and in the application dated 25.4.2000, since in the application dated 7.1.2000 the respondent has contended that the petitioner herein has no movable or immovable property; whereas in the application dated 25.4.2000 the respondent has stated that the petitioner has means to pay the said decretal amount and, therefore, prayed for arrest warrant against the petitioner herein. 5 Moreover, it is also significant to note that on the application dated 6.11.1999 preferred by the respondent herein, the learned Judge directed the respondent/decree holder to produce documents to show that judgment debtor was having means to pay but avoiding to pay, vide order dated 2.12.1999. However, it appears that no compliance of the said order has been made by the respondent/decree holder and without the said compliance, order came to be passed on the application dated 25.4.2000 on 28.4.2000 granting the said application for issuance of arrest warrant against the petitioner herein. 8 Apart from that, there is no dispute that notice under Order 21 Rule 37 of the Code of Civil Procedure was served upon the petitioner herein and in pursuance of the said notice the petitioner herein appeared before the learned Judge and filed his say on 28.4.2000 and resisted the application preferred by the respondent herein on 25.4.2000 for the arrest warrant, but apparently it appears that the learned Judge has neither considered the say dated 28.4.2000 filed by the petitioner herein nor followed the procedure prescribed under Order 21 Rule 40 of the Code of Civil Procedure, before passing the order on 28.4.2000, which certainly resulted into miscarriage of justice. 6 9 In the said context, coming to the application dated 25.4.2000 itself, it is seen that even the said application was not signed by the plaintiff/decree holder and no verification was made thereunder and it also appears that the plaintiff/decree holder has not filed any affidavit in support of the said application, but the said application has been simply signed by the advocate for the respondent/decree holder/plaintiff. Moreover, the following order was passed on the said application by the learned Judge :- “ Issue prayer on P.F. And depositing subsistence charges as per rules. Sd/- 28.4.2000. “ Thus, although directions issued by the learned Judge on 2.12.1999 to the decree holder to produce documents that judgment debtor is having means to pay but avoiding to pay, the said directions apparently were not complied with, but still the learned Judge proceeded to pass the afore said order on application dated 25.4.2000 on 28.4.2000, apparently in the cryptic manner, without following the procedure prescribed under Order 21 Rule 40 of the Code of Civil Procedure. The provision of Order 21 Rule 40 of the Code of Civil Procedure is reproduced hereunder :- 7 “ ORDER XXI .......... ........... ............. ........... 40. Proceedings on appearance of judgment- debtor in obedience to notice or after arrest :- (1) When a judgment-debtor appears before the Court in obedience to a notice issued under rule 37,or is brought before the Court after being arrested in execution of a decree for the payment of money, 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 why he should not be committed to the civil prison. (2) Pending the conclusion of the inquiry under sub-rule (1) the Court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required. (3) Upon the conclusion of the inquiry under sub-rule (1) the Court may,subject to the provisions of section 51 and to the other provisions of this Code, make an order for the detention of the judgment-debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest : Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the 8 decree be not sooner satisfied. (4) A judgment-debtor released under this rule may be re-arrested. (5) When the Court does not make an order of detention under sub-rule (3), it shall disallow the application and, if the judgment- debtor is under arrest, direct his release. “ (Bombay) :- In Order XXI, rule 40, after the existing sub-rule (5), add the following as new sub-rules (6), (7) and (8) :- (6) When a judgment-debtor is ordered to be detained in the custody of an officer of a Court under sub-rule (2) or the proviso to sub- rule (3) above, the Court may direct the decree-holder to deposit such amount as, having regard to the specified or probable length of detention, will provide :- (a) for the subsistence of the judgment- debtor at the rate to which he is entitled under the scale fixed under section 57, and (b) for the payment to the officer of the Court in whose custody the judgment-debtor is placed or such fees (including lodging charges) in respect thereof as the Court may by order fix :- Provided :- (i) that the subsistence allowance and the fees payable to the officer of the Court shall not be recovered for more than one month at a time, and (ii) that the Court may from time to time require the decree-holder to deposit such further sums as it deems necessary. (7) If a decree-holder fails to deposit any sum as required under sub-rule (6) above, the Court may disallow the application and direct 9 the release of the judgment-debtor. (8) Sums disbursed by the decree-holder under sub-rule (6) shall be deemed to be costs in the suit : Provided that the judgment-debtor shall not be detained in the civil prison or arrested on account of any sum so disbursed. “ 10 Applying the parameters of the afore said provision in the instant case, the petitioner/judgment debtor, in the present case, had appeared before the learned Judge in obedience to notice issued under Rule 37 of Order 21 of the Code of Civil Procedure, but although it was incumbent upon the learned Judge to proceed to hear the decree-holder and to take all such evidence as may be produced by him in support of his application for execution, and although it was incumbent upon the learned Judge then to give judgment debtor an opportunity of showing cause why he should not be committed to civil prison, the learned Judge did not follow the said procedure of inquiry before passing the impugned order dated 28.4.2000. Moreover, upon conclusion of inquiry, it was obligatory upon the learned Judge to follow the procedure prescribed in sub-rule (3) and more particularly proviso thereof of Rule 40 of Order 21 of the Code of Civil Procedure, but the learned Judge did not comply with the said provisions prior to passing the impugned order on 28.4.2000. Besides that, it was 10 expected from the learned Judge to follow the procedure as prescribed in amended sub-rule (6) of Rule 40 of Order 21 of the Code of Civil Procedure, but same has not been followed in letter and spirit while passing the impugned order dated 28.4.2000. 11 In the circumstances, it is amply clear that the impugned order passed by the learned Civil Judge, Senior Division, Ahmednagar on Exh.24 in Special Darkhast No. 64 of 1990 on 28.4.2000 is illegal, improper and erroneous and same deserves to be quashed and set aside by allowing the present Civil Revision Application in the interest of justice imposing costs of present Civil Revision Application upon the respondent. 12 In the result, present Civil Revision Application is allowed in terms of prayer clause ‘B’ thereof with costs and the impugned order passed by the learned Civil Judge, Senior Division, Ahmednagar on Exh.24 in Special Darkhast No. 64 of 1990 on 28.4.2000 stands quashed and set aside. (SHRIHARI P.DAVARE, J.) dbm/cra525.00