-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 530 OF 2009 Shri John Fernandes, son of late M. A. Fernandes, major in age, occupation seaman Resident of House no. 1761, Vasvaddo, Vaddi, Benaulim, Salcete, Goa. Represented herein by his Attorney Shri Eddi Floriano De Souza Tavares, son of Egidies De Souza Tavares, major in age, resident of House no. 139/1, Fatima Vaddo, Rivona Goa. …... Petitioner V e r s u s The New India Assurance Co. Ltd. Having its Branch Office and Divisional Office At Jagannath Building, 2nd Floor Near Railway gate, Margao, Goa. …... Respondent Mr. S. S. Kakodkar, Advocate for the Petitioner. Mr. E. Afonso, Advocate for the Respondent. CORAM: R. M. SAVANT, J. DATE : 11 th December, 2009. ORAL JUDGMENT Rule. 2. With the consent of the parties, made returnable and heard forthwith. 3. This Petition filed under Article 227 of the Constitution of India -2- takes exception to the Order dated 12.12.2008, passed by the learned Addl. Civil Judge, Senior Division, Margao, in Special Execution Application no. 11/2006/I, ordering the detention of the Petitioner in civil prison and the Order in CMA no. 3/2009/I dated 10.08.2009, by which Order, the application for review filed by the Petitioner came to be rejected. 4. The Petitioner is the Judgment Debtor by virtue of the Decree passed in Special Civil Suit no. 139/1997/III. The said Decree is dated 26.08.2005. The said Decree was put in execution by the Respondent- Insurance Company. The decretal amount is Rs.5,84,478/-, which together with interest today comes to a total amount of Rs.16,60,506/-, which total amount is being disputed by the learned Counsel for the Petitioner. The roznama of the said Execution Application indicates the adjournment sought on behalf of the Petitioner/Judgment Debtor on various dates in the said Execution Application. The Petitioner claims to be a seaman who, on account of his engagement on ships, is outside the Country most of the time and, is therefore, represented by an Attorney. The adjournments sought by the Attorney of the Petitioner are writ large in the roznama. An application came to be moved by the Decree Holders in the said Special Execution Application that in view of the fact that the Petitioner is stalling the execution of the Decree, he should be directed to disclose his assets on affidavit. This was in terms of Order 21 Rule 41 of the Civil Procedure Code. Accordingly, an Order came to be passed by the executing Court on 19.07.2008 ordering the Judgment Debtor i.e. the Petitioner herein to file his affidavit disclosing his -3- assets and notice was directed to be issued to the Judgment Debtor. Inspite of the direction of the Court, the affidavit disclosing the assets was not filed. The Decree Holder, therefore, filed an application on 01.07.2008 for arrest and detention of the Judgment Debtor in civil prison for the period prescribed by law. The application was heard by the executing Court and by the Order dated 12.12.2008, the arrest warrant came to be issued by the executing Court under Order 21 Rule 38 of the Civil Procedure Code. The executing Court in the said Order has observed the conduct of the Judgment Debtor in the said Execution Proceedings. The Judgment Debtor, thereafter filed an Review Application for review of the said Order dated 12.12.2008. The said Review Application came to be rejected by the executing Court by its Order dated 10.08.2008. The Court which heard the Review Application has observed that the Judgment Debtor had filed replies to the said application for disclosing his assets on affidavit, exhibit 14-B and plea taken in the said replies that notice was not served on the Judgment Debtor. The Court further observed that the Judgment Debtor is neither in India nor residing in the address given in the cause title and, therefore, the case of the Judgment Debtor that unless he is personally served, no affidavit disclosing his assets could be filed and since no affidavit could be filed, his arrest and detention in civil prison was not warranted could not be accepted. The Order further observes that the Judgment Debtor was duly served with the notice of the said application for his detention in civil prison through his wife and also by affixation. The Court, therefore, observed that the intention of the Judgment Debtor appears to be to cause delay in the execution. The Court also took -4- into consideration the fact that to the application filed by the Respondent asking the Petitioner to disclose his assets, the Petitioner had filed his reply, wherein it was contended that the service should be on the Petitioner and not on the Attorney. In so far as the applicability of Order 21 Rule 38 is concerned, the Court was of the view that though the application was under Order 21 Rule 41, to bring the Judgment Debtor before the Court, Order 21 Rule 38 would be applicable. The Court further held that though Order 21 Rule 37 postulates a show cause notice in the facts and circumstances of the present case, the Court was of the view that the discretion to dispense with the show cause notice was justified. As indicated above, the Review Application was rejected on the grounds as mentioned aforesaid. 5. This Petition was heard yesterday when this Court was inclined to set aside the Order of detention of the Petitioner in civil prison on the Petitioner showing his bonafides by depositing atleast the principal amount in the executing Court. The learned Counsel for the Petitioner on instructions of his client states that the Petitioner is not in a position to deposit the said amount. 6. On behalf of the Petitioner, various contentions were sought to be raised. However, the contentions are the same as those which were taken before the Court hearing the Review Application inasmuch as it is sought to be contended that no notice was given to the Petitioner as required, as also the Petitioner was not heard as contemplated under Order 21 Rule 37 as also -5- though the Order directs the detention of the Petitioner in civil prison, it does not specify the days for which he is to be detained. The submission is, therefore, that the Order is vitiated on the aforesaid counts. 7. Per contra, it is submitted on behalf of the Respondents that the conduct of the Petitioner is such that the Petitioner appears to be only interested in stalling the execution of the Decree on one pretext or the other. It is further contended that the Petitioner having appointed an Attorney, service on the Attorney would tantamount to service on the Petitioner and, therefore, the Petitioner cannot have any grievance on that score. 8. In the instant case, as mentioned earlier in this Order, the conduct of the Petitioner can be seen from the fact that in the Execution Application, numerous adjournments have been sought on one pretext or the other right from the year 2006 when the Execution Application came to be filed. In the said circumstances, the Decree Holder finding that the execution of the Decree is sought to be avoided, was constrained to move the application for directing the Judgment Debtor to disclose his assets on affidavit though it is true that in the Order it has been mentioned that notice to the Judgment Debtor should be issued, since the Petitioner was represented by an Attorney and since the Attorney was personally present in the execution Proceedings on various dates, it would not lie in the mouth of the Petitioner now to contend that he is required to be served personally. Moreover, it would be pertinent to note that the Petitioner himself claimed to be a person who is -6- residing out of the Country most of the time and, therefore, appointed an Attorney to deal with the litigation. The Court which had heard the Review Application was, therefore, right in observing that the Petitioner was duly served in respect of the application in which the said Order dated 19.07.2008 came to be passed. In so far as the application for the arrest of the Petitioner in civil prison is concerned, a discretion is vested in the Court under Order 21 Rule 37, to dispense with the notice if the Court is so satisfied. In the instant case, the Attorney of the Petitioner himself informed the Court that the Petitioner is not available as he is out of the Country as he is a seaman. By giving the said reason, the Attorney of the Petitioner was stalling the execution of the Decree. The manner in which the said arrest warrant is to be issued and executed is mentioned in Order 21 Rule 38 and, therefore, the same would also cover an Order for arrest under Rule 41(3). Therefore, there is no substance in the submission of the learned Counsel for the Petitioner that Order 21 Rule 38 is not applicable. In so far as the aspect of the Petitioner being heard as postulated in Order 21 Rule 37, in the facts of the case, wherein the Petitioner admittedly is not available in the Country, which is not disputed by the learned Counsel for the Petitioner before this Court, as also coupled with the fact that the Petitioner is represented by an Attorney who was very much before the Court in the execution proceedings, the executing Court as well as the Court which heard the Review Application, were right in holding that in the facts and circumstances of the case, discretion exercised by the executing Court in dispensing with the notice, was justified. -7- 9. As mentioned herein above, though this Court was also inclined to give an opportunity to the Petitioner for showing his bonafides by depositing at least the principal amount in this Court, the said offer is declined by the Petitioner. This shows that the Petitioner is merely interested in engaging in litigation and thereby postponing the execution of the Decree on one pretext or the other. 10. In that view of the matter, no case for interference is made out. The Writ Petition is accordingly dismissed. 11. In the event the Petitioner is detained, the detention could only be in terms of Order 21 Rule 41 sub Rule (3). Rule discharged. R. M. SAVANT, J. arp/*