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M.M. Ganapathy Vs. New Premier Chemical Industries (P) Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 2413 of 1982
Judge
Reported inILR1985KAR3635; 1986(1)KarLJ312
ActsCode of Civil Procedure (CPC) , 1908 - Sections 51 - Order 21, Rule 37
AppellantM.M. Ganapathy
RespondentNew Premier Chemical Industries (P) Ltd.
Appellant AdvocateR. Rupamathi, Adv. for K.S. Gowrishankar, Adv.
Respondent AdvocateSrinivasan, Adv.
DispositionPetition allowed
Excerpt:
.....really had no means to pay the decretal amount and if he is brought under arrest and if the enquiry is held about his paying capacity thereafter, the mischief would have already been done. in order to avoid this mischief, an enquiry is contemplated. - karnataka minor mineral concessions rules, 1994 rule 43:[p.d. dinakaran, c.j. & v.g. sabhahit,j] unauthorised transporting of sand through ship to foreign country deputy director of department of mines and geology issuing notice on permit holder-company ordered detention of ship containing unauthorisedly loaded cargo till investigations are completed challenge to - held, records clearly show that no transport permit has been obtained for transporting sand to the port for exporting the same. the sane has already been loaded into...........3. if a person is ordered to be arrested without holding an enquiry, as contemplated by order 21 rule 37 read with section 51 of the code of civil procedure, the very object of the said provisions is likely to be frustrated. if the judgment-debtor really had no means to pay the decretal amount and if he is brought under arrest and if the enquiry is held about his paying capacity thereafter, the mischief would have already been done. in order to avoid thismischief, an enquiry is contemplated. in this case, no enquiry has been made before issuing the arrest warrant.4. therefore, the order impugned in this revision is set aside. the revision is allowed. the matter is sent back to the court below to hold an enquiry as directed above.
Judgment:
ORDER

Kulkarni, J.

1.This is a revision by the judgment-debtor against the order dated 2-7-1982 passed by the Additional Munsiff, Virajpet, in Execution No. 94 of 1981, rejecting theapplication of the judgment-debtor.

2. Before ordering the issue of warrant for arrest, it is desirable to hold an enquiry as to whether the judgment-debtor has got the means to pay the decretal amount and whether he is willfully avoiding to pay the same. This is the view taken by this Court in Puttaramaiah -v.- Hajee Ibrahim Essac, 1985 Mys. L.J. 813. This Court has held as -

'We may not be understood to say that in every case the Executing Court should postpone inquiry about the requirements of Section 51 of the Code of Civil Procedure till the stage of detention is arrived at. In appropriate cases, the Executing Court may combine the relevant inquires relating to arrest with that of detention.'

This is also the view taken in In Re. Kaiumari Venkatarathnam A.I.R. 1948 Madras, 9 and T. Kunhiraman -v.- Pootheri Illath, : AIR1957Mad761 .

3. If a person is ordered to be arrested without holding an enquiry, as contemplated by Order 21 Rule 37 read with Section 51 of the Code of Civil Procedure, the very object of the said provisions is likely to be frustrated. If the judgment-debtor really had no means to pay the decretal amount and if he is brought under arrest and if the enquiry is held about his paying capacity thereafter, the mischief would have already been done. In order to avoid thismischief, an enquiry is contemplated. In this case, no enquiry has been made before issuing the arrest warrant.

4. Therefore, the order impugned in this revision is set aside. The revision is allowed. The matter is sent back to the Court below to hold an enquiry as directed above.


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