Allowed

R.Paulraj, v. Sunil Prakash

Madras HC2 Dec 2019CRP(MD)/1673/2013

Case brief

AI extract

What is this about?

The High Court held that the executing court erred by examining the judgment debtor's means to pay without issuing a warrant of arrest under Order 21 Rule 37(2) CPC after the debtor failed to appear. The order was rectified as it suffered from material irregularity.

What did the court decide?

The order of the Executing Court dismissing the Execution Petition dated 04.10.2012 is set aside and the matter is remitted for disposal strictly as per Order 21 Rules 37 to 40 CPC.

R.Paulraj, Vs Sunil Prakash — Execution and Attachment | Madras HC (2019)

¶1

C.R.P.(MD)No.1673 of 2013(NPD)

¶2

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

¶3

DATED : 02.12.2019

¶4

CORAM

¶5

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

¶6

C.R.P.(MD)No.1673 of 2013(NPD)

¶7

R.Paulraj

¶8

.. Petitioner/Petitioner/Plaintiff

¶9

vs.

¶10

Sunil Prakash .. Respondent/Respondent/Defendant

¶11

Prayer: Civil Revision Petition is filed under Section 115 of Civil Procedure Code, to set aside the order and decreetal order passed in E.P.No.29 of 2012 in O.S.No.94 of 2009 dated 04.10.2012, on the file of the Sub Judge, Padmanabhapuram and allow the Civil Revision Petition.

¶12

For Petitioner : Mr.K.Sree Kumaran Nair

¶13

For Respondent : No appearance

¶14

ORDER

¶15

Heard Mr.K.Sree Kumaran Nair, learned counsel appearing for the petitioner. The respondent though served, did not appear in person or through counsel.

¶16

This Civil Revision Petition has been filed by the decree holder against the order, dated 04.10.2012 made in E.P.No.29 of 2012.

¶17

The decree holder having obtained a money decree against the judgment debtor in O.S.No.94 of 2009 sought for the execution by arrest in detention of the judgment debtor in civil prison under Order 21 Rule 37 of the Civil Procedure Code. It appears from the proceedings that the Executing Court ordered notice to the respondent and the respondent/judgment debtor though served, did not appear either in person or through counsel. The proof affidavit was filed by the decree holder stating that the respondent has got means to pay the decree amount and is evading payment. The Executing Court however without adopting the procedure under Order 37(2), proceeded to examine the means evidence and concluded that the decree holder has not established that the respondent/judgment debtor has got means for paying the decree amount. On the said conclusion, the Executing Court dismissed the Execution Petition. https://hcservices.ecourts.gov.in/hcservices/

¶18

1/3

¶19

C.R.P.(MD)No.1673 of 2013(NPD)

¶20

Aggrieved, the decree holder has come up with the present Civil Revision Petition.

¶21

The procedure to be adopted in cases where the decree is sought to be executed by arrest in detention of the judgment debtor in civil prison is prescribed by Order 21 Rule 37, 38, 39 and 40. Order 21, Rule 37 provides that a decree for money can be executed by arrest in detention by judgment debtor in a civil prison. The said rule requires the Court to issue notice to the judgment-debtor calling upon him to appear before the Court on a day to be specified in the notice and show cause as to why he should not be committed to the civil prosion. Such notice was admittedly ordered and was served in the case on hand. However, the judgment debtor did not appear in response to the said notice. Sub Rule 2 of Rule 37 of Order 21 provides that if the judgment debtor does not appear pursuant to the said notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

¶22

Order 21, Rule 37((2) reads as follows:-

¶23

“37(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgmentdebtor.”

¶24

The Executing Court straight-away examined the means evidence and concluded that the judgment debtor has no means. I think that such procedure is acceptable. Once the notice is ordered under Sub Rule 1 of Rule 37 Order 21 and the judgment debtor fails to appear the Court is required to issue a warrant of arrest and secure his presence in Court under Sub Rule 2 of Rule 37 of Order 21 of C.P.C. Without complying with that statutory requirement, the Execution Court proceeded to examine the means of the judgment debtor. Therefore, the order of Executing court suffers from material irregularity and it is liable to be set aside. Hence, the Civil Revision Petition is allowed and the order of the Executing Court, dated 04.10.2012 dismissing the Execution Petition is set aside. The Execution Petition is remitted back to the Court below for being disposed of strictly as per Order 21 Rule 37 to 40 of C.P.C. No costs.

¶25

Assistant Registrar (CS-II) // True Copy //

¶26

Sub Assistant Registrar(CS)

¶27

¶28

https://hcservices.ecourts.gov.in/hcservices/

¶29

2/3

¶30

C.R.P.(MD)No.1673 of 2013(NPD)

¶31

¶32

The Subordinate Judge, Padmanabhapuram.

¶33

+1 CC to M/s.K.SREE KUMARAN NAIR, Advocate ( SR-102955[F] dated 02/12/2019 )

¶34

C.R.P.(MD)No.1673 of 2013(NPD) 02.12.2019

¶35

JMN(18.12.2019) 3P : 3C

¶36

https://hcservices.ecourts.gov.in/hcservices/

¶37

3/3

R.Paulraj, v. Sunil Prakash

Case brief

What is this about?

What did the court decide?

R.Paulraj, v. Sunil Prakash

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Commissioner Vs Vasanthakumari

Chinnusami Vs Kaliammal

R.Palanisamy Vs P.Sridar

Muthulakshmi Vs M. Selvi

M.Pakkeer Vs P.Sahul Hamdeed

D.Ovvaiyar Vs P.Lakshmi