The Court held that a judgment debtor cannot be set ex parte under Order 21 Rule 37 CPC. The court must conduct an enquiry into the debtor's means before ordering arrest. The previous ex parte order was set aside.
Orders Ex P8 and P9 set aside; learned District Judge directed to entertain objection and conduct enquiry into petitioner's means.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
THURSDAY, THE 19TH DAY OF NOVEMBER 2015/28TH KARTHIKA, 1937
OP(C).No. 1330 of 2015 (O)
EP 106/2013 OF IIIRD ADDITIONAL DISTRICT COURT, KOZHIKODE
PETITIONER(S)/JUDGMENT DEBTOR:
NIZAR, AGED 36 YEARS, S/O. ABDUL RAHMAN, 125A, TAMMA NILAM PARAMBA, KALLAI, KOZHIKODE DISTRICT.
BY ADVS.SRI.VINOD SINGH CHERIYAN
SRI.R.SUDHISH
RESPONDENT(S)/DECREE HOLDER:
M/S.INDUS BANK LIMITED, REP. BY POWER OF ATTORNEY HOLDER, SANJAY P, LEGAL EXECUTIVE INUDS BANK, Y.M.C.A. CROSS ROAD, KOZHIKODE 673001.
BY ADVS. SRI.G.HARIHARAN
SRI.PRAVEEN.H.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
OP(C).No. 1330 of 2015 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
PJ
....2/-
..2..
OP(C).No. 1330 of 2015 (O)
EXHIBIT P11: COPY OF THE ARBITRATION AWARD OF ARBITRATOR, CHENNAI IN NCVS /052 L/09 DATED 19.4.2010
RESPONDENT(S)' EXHIBITS
NIL
/ TRUE COPY /
P.S. TO JUDGE
PJ
K.ABRAHAM MATHEW J.
O.P.(C) No.1330 of 2015
Dated this the 19th day of November, 2015
JUDGMENT
The respondent bank which has obtained an award for money initiated proceedings under Order 21 C.P.C against the petitioner-debtor
to realise the amount. The learned District Judge issued him a notice under Order 21 Rule 37 C.P.C. He did not appear. The court set him ex parte and ordered that he be arrested and produced before it. The petitioner filed Ext P5 application to set aside the ex parte order, Ext P3 application to condone the delay in filing it and Ext P2 objection to the notice issued under Rule 37 contending that he has no means to pay the decree debt. The learned District Judge held that Section 5 of the Limitation Act is not applicable to execution proceedings and accordingly by Exts P8 and P9 orders the he dismissed both applications. This is challenged.
O.P.(C) No.1330 of 2015 2
The court can set a party ex parte only if it can proceed further in his absence. Rule 37(2) prescribes that when a judgment debtor fails to respond to the notice issued under Rule 37(1) the court shall issue an arrest warrant against him, which is only to secure his presence for the enquiry contemplated in Rule 40(1) and not for non-payment of the decree debt. But he is at liberty to surrender before the court before he is arrested. When he is arrested and produced, or surrenders before the court, Rule 40 comes in to play. As the court has not proceeded to the stage of enquiry regarding his means to pay the debt, he has not lost his right to show cause why he should not be detained in jail for non-payment of the debt. Even if he does not show cause, he cannot be immediately ordered to be detained in jail unless the decree holder proves that he has the means to pay the debt. No means is pleaded or not, the court has to conduct an enquiry, in which the decree holder should adduce evidence to establish his allegation of the judgment debtor having the means to pay the debt. Sub Rule 2 of Rule 40 gives discretion to the court to release the latter on his furnishing security for his appearance or to detain him in the custody of an officer of the court during the pendency of the enquiry. The detention under this sub rule is
O.P.(C) No.1330 of 2015 3
not for non payment of the debt, but only to ensure his presence during
the enquiry. The enquiry contemplated in Rule 40(1) is mandatory. A bald statement in the decree holder's pleadings and evidence that the debtor has properties or income to pay the debt is not sufficient. If, on enquiry, the court reaches the conclusion that the debtor is liable to be detained for non payment of the decree debt, he shall be caused to be arrested so that he may be detained. His arrest is necessary only if he is not already under arrest. This is the procedure prescribed in Rule 40 C.P.C.
Act is not applicable to execution proceedings. But that is irrelevant because the court could not have set him ex parte and proceeded with the execution in his absence. Exts P3 and P5 applications were unnecessary. The impugned orders are liable to be set aside. The District Judge should entertain Ext P2 objection filed by the petitioner and conduct an enquiry with regard to his means to pay the debt.
O.P.(C) No.1330 of 2015 4
In the result, this O.P is allowed. Exts P8 and P9 orders are set aside. The learned District Judge is directed to take up Ext P2 objection and conduct an enquiry with regard to the means of the petitioner to pay the decree debt.
K.ABRAHAM MATHEW JUDGE
pm
3 issues framed by the court
Whether a judgment debtor can be set ex parte by the court and proceeded against in his absence under Order 21 Rule 37 C.P.C.
Whether an enquiry into the means of the judgment debtor to pay the debt is mandatory before ordering detention.
Whether Section 5 of the Limitation Act applies to set aside ex parte orders in execution proceedings.
3 provisions across 2 enactments
NIZAR
M.S.INDUS BANK LIMITED
K.ABRAHAM MATHEW
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
