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Madhusudan Prabhakar Chitale Vs. Trimbak Vyankatesh Joshi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 46 of 1958
Judge
Reported inAIR1961Bom23; 1961BomCR(Cri)23; (1960)62BOMLR599; ILR1960Bom523
ActsCode of Civil Procedure (CPC), 1908 - Sections 51 - Order 21, Rules 37(1), 37(2) and 40 - Order 3, Rule I
AppellantMadhusudan Prabhakar Chitale
RespondentTrimbak Vyankatesh Joshi
Appellant AdvocateL.P. Pendse, Adv.
Respondent AdvocateS.G. Mandrekar, Adv.
Excerpt:
.....himself and appear through his counsel in answer to notice under order xxi, rule 37(1)--judgment-debtor present in court in answer to such notice but at adjourned hearing remaining absent and appearing through counsel--whether court has jurisdiction to issue warrant for arrest of judgment-debtor. ;that this was not a sufficient compliance with the requirements of the notice and of the law, and;that the court could under order xxi, rule 37(2), of the code order the issue of a warrant for the arrest of the judgment-debtor. ;the provisions of order xxi, rule 40, of the code, apply after the judgment-debtor appears in court in pursuance of either of a notice or a warrant under order xxi, rule 37. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will ..........in person and his appearance through a counsel is not enough. this is made further clear by the form of notice which is used in a case of this kind. form no. 12 in appendix e of the first schedule to the c. p. c. contains these words,'you are hereby required to appear before thiscourt on the day of 19 to showcause why you should not be committed to thecivil prison, in execution of the said decree'.this form has not been amended consequent on theamendment of order xxi rule 40 and of section 51 c. p. c.if we compare the language used here and thatused in form no. 1 in appendix b to the firstschedule, c. p. c. it will be further clear that wherea notice is issued in form no. 12 the person againstwhom such a notice is issued has to appear in person.now, in form no. 1 of appendix b the.....
Judgment:
ORDER

1. This is an application by the decree-holder for the revision of an order passed in execution by the Small Cause Court at Poona, directing the arrest of the petitioner under Order XXI Rule 37 Sub rule 2, C. p. c.

2. The opponent obtained a decree for Rs. 417-8-0 against the petitioner on 4-8-1955. As the petitioner did not pay the decretal amount the opponent filed an application for execution of the decree. By that application the opponent sought the arrest and detention of the petitioner in a civil jail. After the application was made the court issued a notice to the petitioner under Order XXI Rule 37 Sub-rule (1), C. P. C. The petitioner attended the court in obedience to the notice and filed his written statement. The matter was then adjourned and the petitioner failed to attend on the date of the adjourned hearing. According to Mr. Pendse, the petitioner's counsel put in his appearance on his behalf in court on the date of the adjourned hearing. As the petitioner was not present in person the court ordered the issue of a warrant against him under Order 21 Rule 37 Sub-rule (2). Mr. Pendsc contends that the court had no jurisdiction to make an order of this kind for two reasons. In the first place, according to him, the petitioner was not bound to be present in person and the appearance on his behalf by his counsel was sufficient compliance with the requirements of law. The second ground urged by him is that under the law as it Stands today the burden is upon the decree-holder to satisfy the court that it is necessary to commit the judgment-debtor to prison and that, therefore, it is not necessary for the judgment-debtor to show cause why he should not be committed to prison, until and unless the decree-holder makes out a prima facie case for the committal of the judgment-debtor to prison,

3. It is true that Section 51 of the C. P. C. as well as Order XXI Rule 40 have been amended in the year 1956 but the question here is not whether the petitioner can be committed to prison or not but whether the court has jurisdiction under Sub-rule (2) Rule 37 Order XXI to order the issue of a warrant for his arrest because he was not present in court on the adjourned date of hearing. No doubt under Order III Rule I, C. P. C., a party who is required to appear before the court, may either appear in person or through a recognised agent or a Pleader. But that rule itself lays down that where it is expressly provided otherwise by any law, a party will have to appear in person. Now, if one reads the provisions of Sub-rule (1), Rule 37 of Order XXI it will be clear that the Code contemplates the personal presence of the judgment-debtor because under that sub-rule the court has also a power to issue a warrant for the arrest of the person against whom the execution is sought. In lieu of issue of such a warrant the court has power to direct the issue of a notice. But even in answer to such a notice the judgment-debtor must appear in court in person and his appearance through a counsel is not enough. This is made further clear by the form of notice which is used in a case of this kind. Form No. 12 in Appendix E of the First Schedule to the C. P. C. contains these words,

'you are hereby required to appear before thisCourt on the day of 19 to showcause why you should not be committed to thecivil prison, in execution of the said decree'.

This form has not been amended consequent on theamendment of Order XXI Rule 40 and of Section 51 C. P. C.If we compare the language used here and thatused in Form No. 1 in Appendix B to the FirstSchedule, C. P. C. it will be further clear that wherea notice is issued in Form No. 12 the person againstwhom such a notice is issued has to appear in person.Now, in Form No. 1 of Appendix B the languageused is,

'you are hereby summoned to appear in this Court in person or by a Pleader duly instructed, and able to answer all material questions relating to the suit ...... '

Therefore, when the intention of the Legislature was to give an option to the person to whom a summons is issued whether to appear in person or through some one else, it specified the option in the notice itself. I am, therefore, unable to accept Mr. Pendse's contention that the appearance through Counsel on the adjourned date was a sufficient compliance with the requirements of the notice and of the law. It may be that the petitioner was present on the date originally mentioned in the notice and actually filed his written statement on that day but the matter was not taken up by the court on that day but on a subsequent day. Therefore, it was obligatory upon the petitioner to remain present on that date. By his failure to do so he brought upon himself the consequences provided by Sub-rule (2) of Rule 37 of Order XXI. Now, under this sub-rule the court has the power to issue a warrant of arrest against the judgment-debtor who, despite, service of notice under Sub-rule (1), does not appear in court or is not present in court on the date for which the matter is fixed for hearing. Where a court issues a warrant either under Sub-rule (1) or under Sub-rule (2) it does not do so with the intention of committing the person against whom a warrant is issued to prison. It only issues such a warrant to secure the presence, of such a person in court. For these reasons the provisions of Section 51. or Order XXI Rule 40 are not applicable. The provisions of the latter rule would apply at a later stage, that is, after the judgment-debtor appears in Court, in pursuance either of a notice or a warrant.

4. For these reasons I am satisfied that the order sought to be revised is correct. The application for revision is dismissed. Rule is discharged with costs.

5. Revision dismissed.


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