1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8914 OF 2009 Dinkar Tukaram Mule ...Petitioner vs. Dnyandeo Gopaji Morde Prop of M/s.Dnyandeo Gopaji Morde ...Respondent Mr.J.M.Patil for the petitioner Mr.J.S.Deo for the respondent CORAM :A.S.OKA,J. DATE : MARCH 12, 2010 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent. Considering the narrow controversy involved in the petition, the same is taken up for final disposal. 2 The respondent has filed a money suit against one Sitaram Tukaram Mule. There was a decree passed on 10 th October 2006 in the said suit in the sum of Rs.8,85,800/- with interest @ 5% thereon. An execution application was filed by the respondent. In the execution application warrant of arrest under Rule 38 of Order XXI of the Code of Civil Procedure,1908 was issued against the Judgment Debtor. The challenge in this writ petition under Article 227 of the Constitution of India is to the arrest warrant. 3 The contention of the petitioner is that he is not the Judgment Debtor and he has nothing to do with the Judgment Debtor by the name Sitaram Tukaram Mule and therefore, warrant of arrest could not have been issued against the petitioner. He submitted that the issue whether the petitioner is the Judgment Debtor or not will 2 have to be decided by the executing Court. 4 I have heard the learned counsel for the parties. Warrant of arrest has been issued under Rule 38 of Order XXI of the said Code. It will be necessary to consider the rule 40 of Order XXI of the said Code. It provides that when the Judgment Debtor appears before the executing Court in obedience to a notice issued under Rule 37 of Order XXI of the said Code or is brought before the executing Court after being arrested in execution of a decree for 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 an opportunity to the Judgment Debtor of showing cause as to why he should be committed to the civil prison. Under sub-rule 2 of Rule 40 of Order XXI, the Court has power pending the conclusion of enquiry under sub rule 1 to detain the Judgment Debtor in the custody of the Court or to release him on his furnishing security to the satisfaction of the Court for his appearance before the Court when required. 5 The learned counsel for the petitioner on instructions stated that without prejudice to the contention of the petitioner that he is not the Judgment Debtor, the petitioner is willing to appear before the executing court and is willing to furnish security to the satisfaction of executing court for his appearance. He submitted that the executing Court be directed to consider the objections of the petitioner to the execution including his objection that he is not the Judgment Debtor. 6 Thus, the petitioner has shown willingness to appear 3 before the Court. Hence, adjudication as contemplated by sub-rule 1 of Rule 40 of Order XXI of the said Code will have to be made by the executing Court. It is obvious that the petitioner will be entitled to raise all contentions including the contention that he is not the Judgment Debtor. In view of mandate of section 47 of the said Code, the executing Court is bound to decide the objections raised by the petitioner. 7 The petitioner has shown willingness to furnish security. The petitioner will have to furnish security in the sum of Rs.15,000/- to the satisfaction of the executing Court. In view of the statement made by the petitioner that he is willing to appear before the executing Court, warrant issued against the petitioner shall be kept in abeyance till the date of his appearance. If the petitioner appears on the date fixed by this Court before the executing Court, warrant will stand automatically cancelled. 8 Hence, the petition is disposed of by passing the following order : i) The petitioner is directed to appear before the executing Court on 12 th April 2010 at 11.00 a.m. ii)The petitioner shall furnish security in the sum of Rs.15,000/- to the satisfaction of the said Court. The executing Court will grant time of 15 days to the petitioner to furnish security. iii)Warrant issued against the petitioner shall not be executed and implemented till expiry of period of 15 days from the 12 th April 2010. iv)If the petitioner appears before the executing Court on 12 th April 2010 and if he furnishes security as directed by this Court within a period 4 of 15 days from the said date, warrant shall stand cancelled. v) If compliance is not made by the petitioner, it will be open for the concerned court to execute the warrant. vi)If the petitioner makes compliance, it will be open for him to raise all possible objections before the executing Court including the objection that he is not the Judgment Debtor. vii)It is obvious that the said objection will be considered by the executing Court after giving an opportunity to both the parties to adduce relevant evidence. viii)All contentions of the parties in that behalf are kept open. ix)Writ petition is disposed of in above terms. x) The parties and the trial Court to act upon an authenticated copy of this order. JUDGE