M. Sadasivayya, J.
1. The petitioners in this case were the decree-holders in Execution Case No. 112 of 1955 on the file of the Court of Small Causes, Bangalore. By his order dated 27-6-1936 passed in the above said Execution Case, the learned Judge of the Court of Small Causes held that the fist judgment-debtor had no means to pay and refused to make an order for the arrest of the said judgment-debtor. The decree-holders feeling aggrieved by the said order passed by the learned Judge of the Court of Small Causes have preferred the present revision petition.
2. The main contention which has been urged by the petitioners is that the first judgment-debtor had been barred by the principles of constructive res judicata and that therefore the learned Judge of the Court of Small Causes should not have entered into the question as to whether the judgment-debtor had means to pay. It would appear that in response to a notice issued under Rule 37 of Order XXI, the counsel for the judgment-debtors appeared and obtained time for filing objections. But, no objections were filed.
Subsequently, evidence was taken by the lower Court as regards the means of the judgment-debtors to pay the decree amount and the court after consideration of that evidence found that the First judgment-debtor did not have the means to pay. The contention now urged is, that this subsequent opportunity which had been allowed by the lower Court to the judgment-debtors to adduce evidence ought not to have been allowed to them in view of the fact that no objections had actually been filed in response to the notice which had been issued under Rule 37 of Order XXI, C. P. C.
3. After hearing the arguments I am not satisfied that there is any force in the contentions which have been advanced on behalf of the petitioners. Firstly, there was acquiescence on the part of the decree-holders when they did actually let in evidence, in an attempt to show that the judgment-debtors had sufficient means to pay the decree amount On this ground alone, the decree-holders ought not to be allowed in revision to contend that the opportunity which had been given by the learned fudge was wrong.
Nextly, the contention urged on behalf of thepetitioners does not appear to be sustainable in law,on a consideration of Rules 37 and 40 of OrderXXI of the C. P. C. Rule 37 of Order XXI nodoubt requires the issue of a notice calling uponthe judgment-debtor to appear before the Court ona day to be specified in the notice and to showcause why he should not be commuted to civilprison.
But, it does not necessarily follow from the wordings of Rule 37 of Order XXI that in the event ofthe judgment-debtor failing to appear in response to the notice issued under Rule 37 or in the event of his failing to file objections even after appearance, he renders himself liable for being committed to civil prison without any further investigation. On the other hand, the provisions of Rule 40 of Order XXI clearly show that before the judgment-debtor can be committed to civil prison a further procedure has got to be followed by the lower Court.
It is required under Sub-rule (1) that when the judgment-debtor either appears before the Court in obedience to a notice issued by the Court under Rule 37 or is brought before the court after being arrested, the Court should proceed to hear the decree-holder and take such evidence as may be produced by him in support of his application for execution and then give an opportunity to thejudgment-debtor to snow cause why he should not be committed to the civil prison.
It is, therefore, seen that under Sub-rule (1) of Rule 40 the Court should proceed to hear the decree-holder and take such evidence as he may adduce and is required to give the judgment-debtor an opportunity to show cause why he should not be committed to civil prison. The obligation on the part of the court to follow this procedure is in no way dependent on as to whether the judgment-debtor has or has not shown cause in response to a notice issued under Rule 37. In Sirkar's commentaries it is stated as follows:
'When the judgment-debtor appears or when he is brought under arrest (although he did not appear to snow cause after notice), the Court after compliance with the provisions of Section 55(2)(3) will proceed to make an enquiry under this rule as to whether it is a fit case for sending him to prison. The object of enquiry is to ascertain from evidence whether the judgment-debtor has present means to pay the debt or some substantial part thereof. The decree-holder shall tender such evidence as he may be in possession of in support of his application and the judgment-debtor shall then be heard and any evidence that he may give against the application shall be taken. In deciding whether detention of any person should or should not he ordered, the court shall apply the tests provided in provisos (a), (b) and (c) of Section 51 and no judgment-debtor shall be sent to prison unless the court is satisfied that any of the conditions detailed in the proviso to that section exists. The burden of proving the existence of such circumstances has been placed on the decree-holder.'
It is, therefore, clear that there is no substance in the contention that the procedure that is required under Sub-rule (1) of Rule 40 of Order XXI, should not have been followed merely because the judgment-debtor either did not appear in response to a notice issued under Rule 37 or after having appeared did not put forward any objections by way of answer to that notice.
4. The appreciation of the evidence in thecase by the learned judge of the Court of SmallCauses, does not appear to have been erroneous,and does not require any interference. I do not,therefore find any grounds to interfere with theOrder which has been passed by the lower Court.This revision petition fails and is dismissed withcosts.
5. Petition dismissed.