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Mohammad Ali Khan Vs. Mumtaz Jahan Begam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. S.A. No. 3473 of 1960
Judge
Reported inAIR1964All344
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 40(1)
AppellantMohammad Ali Khan
RespondentMumtaz Jahan Begam
Appellant AdvocateK.C. Agrawal, Adv.
Respondent AdvocateMajiduddin, Adv.
DispositionAppeal dismissed
Excerpt:
civil - execution - order 21 rule 40(1) of the code of civil procedure, 1908 - decree holder presented evidence against the judgement debtor - judgment debtor asks for adjournment of the hearing for preparation - held, not necessary that adjournment to be allowed in this regard. - .....initiated under order 21, rule 40, c. p. c., and after the court had recorded the evidence of the decree-holder in support of his application for execution, it called upon the judgment-debtor to produce evidence in rebuttal. the judgment-debtor prayed that another date be fixed for this purpose and the executing court treating this as an application for adjournment, adjourned the case on condition of payment of costs by the judgment-debtor. the judgment-debtor, however, did not pay the costs, and instead contended that he was entitled as of right to another date and could not be precluded from leading evidence on the adjourned date without payment of costs.4. the only point pressed before me on behalf of the appellant is that the judgment-debtor was entitled, by virtue of order 21, rule.....
Judgment:

R.S. Pathak, J.

1. This is a judgment-debtor's appeal arising out of execution proceedings.

2. Smt. Mumtaz Jahan Begam obtained a decree for her dower debt against Mohd. Ali Khan on March 2, 1950. The decree! was sought to be executed by the arrest and detention of the judgment-debtor.

3. It appears that proceedings were initiated under Order 21, Rule 40, C. P. C., and after the Court had recorded the evidence of the decree-holder in support of his application for execution, it called upon the judgment-debtor to produce evidence in rebuttal. The judgment-debtor prayed that another date be fixed for this purpose and the executing Court treating this as an application for adjournment, adjourned the case on condition of payment of costs by the judgment-debtor. The judgment-debtor, however, did not pay the costs, and instead contended that he was entitled as of right to another date and could not be precluded from leading evidence on the adjourned date without payment of costs.

4. The only point pressed before me on behalf of the appellant is that the judgment-debtor was entitled, by virtue of Order 21, Rule 40 (1), C. P. C. to an opportunity of showing cause on a date after the decree-holder had produced his evidence.

5. Under Order 21, Rule 40, when the judgment-debtor pursuant to a notice under Rule 37, is brought before the Court upon being arrested in execution of a decree for payment of money, the Court must first hear the decree-holder and take all such evidence as may be produced by him in support of his execution application. Thereafter the judgment-debtor is required to show cause why ho should not be committed to the civil prison. The provision seems to contemplate that the decree-holder must first lead evidence and establish a prima facie case. That was the view taken by a Bench of this Court in Harpal Singh v. Lala Hira Lal, AIR 1955 Ail 402. After such prima facie case has been established the Court will then give the judgment-debtor an opportunity of showing cause. The words 'showing cause' indicate that a judgment-debtor will then file his reply and lead evidence in support of his case that he should not be committed. As was observed by Raghubar Dayal, J. in the aforesaid case :

'The judgment-debtor may or may not file any written reply. It is for the decree-holder to lead his evidence in the presence of the judgment-debtor. Such evidence should be in support of his application for execution and should have reference to the grounds which, according to the decree-holder, would justify the arrest of the judgment-debtor in execution of the decree, and which should be one of the grounds mentioned in Clauses (a) to (c) to proviso to Section 51. It is when the decree-holder has led 'prima facie' evidence in support of his application that the judgment-debtor has to be given an opportunity of showing cause why he should not be committed to the civil prison.'

The judgment-debtor may elect to produce evidence there and then, or may apply for a data for this purpose. It is not necessary that the Court should issue a notice to the judgment-debtor requiring him to show cause. The provision contemplates that the judgment-debtor is present in person. There is no reason why the Court cannot require the judgment-debtor to show cause forthwith against being committed to prison. The Question whether in the circumstances of a particular case the Court should require him to do so forthwith on some other date is a matter within the judicial discretion of the Court. It may be that having regard to the peculiar difficulties of the judgment-debtor or considering the evidence led by the decree-holder it may be desirable to afford an opportunity to the judgment-debtor to lead evidence on some other date. But that is not to say that the judgment-debtor is entitled as of right to another date.

There is no duty upon the Court that upon the evidence of the decree-holder being recorded, it must adjourn the case to another date to enable the judgment-debtor to show cause. The taw merely required that the judgment-debtor should have an opportunity of showing cause. Whether he is afforded an opportunity on the same date or upon some other date will depend upon the circumstances of each case. The use of the word 'then' in the provision requiring the Court to give the judgment-debtor an opportunity of showing cause does not mean that the Court necessarily has to adjourn the case to another date. As I have said above, that is a question to be determined in the judicial discretion of the Court :

6. In view of the matter the contention raised on behalf of the appellant cannot be accepted. The appeal fails and is dismissed with costs.


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