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Parol Abu Packer Vs. Pokkyarath Sivasankara Kurup - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 218 of 1950
Judge
Reported inAIR1952Mad161; (1951)2MLJ175
ActsCode of Civil Procedure (CPC) , 1908 - Sections 51
AppellantParol Abu Packer
RespondentPokkyarath Sivasankara Kurup
Appellant AdvocateS. Venkatachala Sastry, Adv.
Respondent AdvocateK. Kuttikrishna Menon and ;V. Balakrishna Eradi, Advs.
DispositionAppeal allowed
Excerpt:
- - the preamble to the district munsiff's order clearly states that the respondent has been given no notice at all......being the case, the order appealed against is unsustainable and has to be set aside. i set aside the orders of the lower courts and remand r.e.p. no. 112 of 1950 to the trial court for restoration to its original number on the file and disposal, alter giving notice to the respondent, expeditiously. as this point was not taken in the lower court, nor even in the grounds of appeal to this court, i direct each party to bear his own costs in this second appeal.
Judgment:

Govinda Menon, J.

1. It is clear that before the appellant was ordered to be arrested, no notice was given to him and therefore the order of the learned Judge to the effect, viz., 'means proved, arrest by 6th June 1950' cannot be justified in view of the proviso to Section 51 of the Civil Procedure Code, which lays down that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, etc. So it is clear that before an order for arrest is made, the Judgment-debtor should be given an opportunity of showing cause why he should not be arrested. The preamble to the District Munsiff's order clearly states that the respondent has been given no notice at all. Such being the case, the order appealed against is unsustainable and has to be set aside. I set aside the orders of the lower Courts and remand R.E.P. No. 112 of 1950 to the trial Court for restoration to its original number on the file and disposal, alter giving notice to the respondent, expeditiously. As this point was not taken in the lower Court, nor even in the grounds of appeal to this Court, I direct each party to bear his own costs in this second appeal.


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