ORDER
1.The petitioners, the judgment-debtors have filed this civil revision petition as against the order of arrest in S. P. No. 18 of 19% on the file of the learned Subordinate Judge. Kallalkurichi, in execution of money decree passed against than in O.S.No.106 of 1985 on the file of the Sub Court, Viliupuram.
2. Both the petitioners, the judgment-debtors were ordered to be arrested through the impugned order dated 31.7.2000. The same is being challenged in this civil revision petition by both the judgment-debtors.
3. Mrs. Hema Sampath, the learned counsel appearing for the petitioners would vehemently urge the point that the order of executing Court is in error of jurisdiction, inasmuch as the Court has not followed the mandatory procedure laid down in Order 21, Rule 40 C.P.C. even without any enquiry or any evidence adduced by decree-holder in support of his application for execution and without giving opportunity to the petitioners to show cause as to why they should not be committed to Civil prison. The learned counsel would cite the authorities in P.G.R, Padayachi v. Mayavaramfinancial Corporation, , Jolly George Varghese v. Bonk of Cochin, and Muthusomy, M v. Supasri Chit Funds, Coimbatore, to substantiate the plea that the impugned order passed without conducting such an enquiry and without following the mandatory procedure is bad in law.
4. I have carefully considered the submission made by the counsel for the petitioners and gone through the grounds, affidavit and typed set.
5. Having given my anxious consideration to the submission urged by the learned counsel for the petitioners, I am of the opinion that there is no merit in the point taken by the learned counsel for the petitioners. The circumstances under which the above conclusion is arrived at by this Court are hereunder.
6. The execution petition in E.P.No. 18 of 1996 has been filed under Order 21, Rule 10 and 11 of C.P.C. The prayer in the application and the affidavit filed by the decree-holder/respondent is to the effect that the notice may be issued under Order 21, Rule 37 and then to issue warrant against them under Rule 38 and collect the decree amount with interest, namely Rs.55,664. Accordingly, the notice was issued, Both the petitioners/judgment-debtors on receipt of notice entered appearance and filed counter stating that the insolvency petition is pending and therefore, the execution petition is to be dismissed. The executing Court on considering the affidavits filed by parties to the proceedings gave a finding to the effect that there is no material to show that in respect of the suit decree any insolvency petition is pending before any Court and ordered arrest of the petitioners
to recover the decree amount. Thus, it is clear that the warrant has been issued under Order 21, Rule 38 C.P.C.
7. The relevant provision relating to the execution of the decree is Section 51 C.P.C. The perusal of the proviso to Section 51 would show that it makes it obligatory on the part of the executing Court to give, an opportunity to the judgment-debtor to show cause as to why he should not be committed to prison before passing such an order. Thus, it applies not for ordering arrest of the judgment-debtor but only for committing him to prison. Section 51 proviso is as follows-
“Provided 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.”
8. The above Section 51 provides arrest and detention in prison as one of the modes of executing a decree. As per the terms of the proviso, the decree-holder has necessarily to prove : (1) that the judgment -holder has, or has had since the date of the decree, the means to pay the decree amount or some substantial part thereof and (2) that the judgment-debtor refuses or neglects or has refused or neglected to pay the same. This proof should be adduced before ever the judgment-debtor could be committed to prison. This could be done only after the judgment-debtor had been given an opportunity to show cause against such detention and after the executing Court recorded its reasons in support of its order.
9. Thus, the provision of the Code makes a distinction between an order of arrest and an order of detention, in other words, such a procedure is contemplated as per the proviso to Section 51 only before ordering the detention of the judgment-debtor in civil prison.
10. Order 21, Rule 40 prescribes the procedure on the judgment-debtor either appearing in Court in obedience to the notice or is brought before Court after being arrested in execution of the decree for payment of money. This provision would say that when the judgment-debtor so appears or is brought before Court, the court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to civil prison. Thus, it is quite obvious that this provision is only in consonance with the proviso to Section 51 which prescribes that the judgment-debtor ; shall be given an opportunity to show cause before he is committed to civil prison. In other words, it can be safely held that there is nothing in the Code which would indicate or compels the executing Court either to give an opportunity to the judgment-debtor or the decree-holder to adduce evidence to have a full-fledged enquiry and record its reasons in writing before even it passes an order of arrest against the judgment-debtor.
11. As indicated above, the application has been filed under Order 21, Rule 10 and 11 C.P.C. requesting to issue notice under Rule 37 and then to issue warrant under Rule 38. In respect of that prayer, the executing Court after hearing the counsel for the parties has passed the order impugned Issuing warrant under Rule 38. In other words, it is clear that the impugned order cannot be construed to be die
order passed under Order-21, Rule 40 C.P.C. If this order is established to be an order under Order 21, Rule 40 of the Code, then it would certainly be wrong, for the reason, ordering detention of the judgment-debtor should be only after making an enquiry after giving opportunity to both patties to adduce evidence in order to decide as to whether the judgment-debtor was liable to be detained in civil prison in execution of the decree. But as indicated above, there is nothing to show that in the present case, the order of arrest passed by the executing Court was one made under Order 21, Rule 40, since the order was passed only under Rule 38.
12. The above view of mine is supported by the decision rendered by the Division Bench of this Court in , cited by the learned counsel for the petitioners. The reading of the said decision would clearly show that the judgment of the Division Bench has followed the earlier decisions rendered in Londa Abbayee of Pitapuram v. Badam Suryanarayana, AIR 1948 Mad. 9 and Namachivaya Mudaliar v. Manickavelu and Co, . The other two decisions, namely, Jolly George Varghese v. Bank of Cochin and Muthusamy, M v. Supasri Chit Funds, Coimbatore, not help the counsel for the petitioners, as they would deal with the order committing the judgment-debtor to prison.
13. In the light of the above discussion, it shall be held that the order of arrest passed by the executing Court without conducting enquiry as provided in Rule 40 and without giving a finding with regard to the means of the judgment-debtors, is not one without jurisdiction, as the order of arrest is only under Order 21, Rule 38 C.P.C. Therefore, I do not find any illegality in the impugned order.
14. Before parting with this case, I am constrained to deal with yet another aspect.
15. It is seen from the records that the respondent/plaintiff filed a money suit in the year 1985 in O.S.No.l06 of 1985. The decree was passed against the petitioners/defendants on 19.11.1990. There is no appeal against this decree. After having waited for five years, the respondent-plaintiff filed an execution petition requesting for the prayer referred to above on 17.11.1995. The first petitioner/judgment-debtor filed a counter on 21.8.1996 stating that he filed an insolvency petition on 6.2.1996. The second petitioner also filed a counter-affidavit stating that he also filed another insolvency petition in the year 1996. But, the perusal of the affidavit and the grounds in the civil revision petition would show that the insolvency petition filed by the first petitioner was dismissed for default and in the insolvency petition filed by the second petitioner, admittedly, there is no reference about the decree amount in the present suit.
16. Under those circumstances, the executing Court after hearing the parties and after perusal of the records found that there is no insolvency petition pending. Even before this Court there is no material produced to show that any order has been passed by any Court in the insolvency proceedings in respect of the suit decree amount. Thus, it is clear that the petitioners have not shown any interest either to file an appeal against the decree passed on 19,11,1990 against
them or to make an attempt to pay even a pie towards the decree amount. Thus, the respondent/plaintiff even though had filed the suit as early as in the year 1985, which was decreed on 19.11.1990, till date is not able to recover any money from the petitioners. Even for the disposal of the execution application filed on 17.11.1995 for executing the decree dated 19.11.1990, the plaintiff had to wait for 5 more years to get the order of arrest under Order 21, Rule 38. passed on 31.7.2000.
17. Admittedly, both the petitioners are brothers. Even according to the petitioners, the insolvency petitions were filed only after filing of the execution petition by the decree-holder and one of these petitions was dismissed for default and in another petition the suit decree amount has not been mentioned. This would show the conduct of the petitioners.
18. Whatever it is. Since I take the view that the impugned order has been passed under Rule 38, the question regarding the means to pay and other opportunity to adduce evidence by both the parties before the Court, would arise only when the final order is passed under Order 21, Rule 40 C.P.C. after the petitioners were arrested and brought before the Court. Therefore, the petitioners are liable to be arrested and brought before the Court to enable the Court to take further course of action for recovering the decree amount, consequently, the civil revision petition and C.M.P.No.12026 of 2000 are dismissed.
