IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION No.1070 OF 2019 (GM-CPC) BETWEEN Amitabh Sinha, S/o. Late M.C.Sinha Aged about 41 years, Permanent residence at No. 179 Tiwaripur First, P.O.Sewans Tannery, Adarsh Nagar,Kanpur-208010, U.P.-India.
Presently residing at:
No. 1253, Sector-2, R.K.Puram, New Delhi-110022. …Petitioner (By Sri. Prithvi Raj B.N., Advocate) AND Sunita Motwani, W/o. Amitabh Sinha, Aged about 52 years, R/at No.C-910, Raja Aristos Apartments, Dodda Kammanahalli Main Road, Off Bannerghatta Road, Bangalore-560076. …Respondent (Mrs. Sunitha Motwani, Party-in-Person) This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the impugned order dated 01.01.2019 passed by the IV Additional Civil Judge (Sr.Dn.), Bengaluru Rural District, at Bengaluru in Ex.17/2017.
This Writ Petition coming on for preliminary hearing, this day, the court made the following:
ORDER This writ petition is by the judgment debtor in Execution No.17/2017 on the file of the Principal Civil Judge, Bengaluru Rural District, Bengaluru. The Executing Court issued arrest notice to the petitioner. The petitioner filed his reply showing cause as to why he should not be arrested. Thereafter, the Executing Court considered the cause shown by the judgment debtor, rejected it and directed the petitioner to pay the arrears on or before 1.1.2019. Since the judgment debtor did not deposit the amount on 1.1.2019, upon a memo filed by the decree holder, arrest warrant was issued against the petitioner and this order has been challenged before this court.
2. The only argument of the petitioner’s counsel is that without holding an enquiry under Order 21 Rule 40 CPC arrest warrant cannot be issued.
3. The decree holder/respondent appears in person and submits that the Executing Court has rightly issued arrest warrant. The petitioner has been dragging on the execution proceeding on one or the other pretext. He has sufficient means to satisfy the decree and therefore the writ petition has to be dismissed.
4. As has been argued by the petitioner’s counsel, before sending the judgment debtor to civil prison an enquiry is necessary to be held. There cannot be a dispute with regard to this proposition. In this case what has happened is arrest notice was issued and the judgment debtor appeared and filed his reply statement. After considering the reply statement, the Executing Court issued arrest warrant. The petitioner has not yet been arrested. Since it is urged by the petitioner’s counsel that without holding an enquiry, arrest warrant cannot be issued, the position of law in this regard must be made clear. Order XXI Rule 40 of CPC clearly envisages the procedure to be followed before committing the judgment debtor to civil prison. Section 58 of CPC deals with period up to which the judgment debtor can be committed to prison while enforcing the decree for payment of money. Order XXI Rule 40 sub-rule (1) states that the enquiry can be held at two stages. After issuing notice to the judgment debtor, if he appears and shows cause opposing his arrest, the decree holder may be asked to provide evidence with regard to means of the judgment debtor. Secondly, even after issuance of warrant, if the judgment debtor is produced before the Court, enquiry can be held. Order XXI Rule 40 sub-rule (2) makes it very clear that even pending enquiry, in the discretion of the Court, judgment debtor may be detained in the civil prison or he may be released by obtaining security from him. This being the position of law, in this case since the petitioner has not yet been arrested pursuant to the arrest warrant, the court can hold an enquiry to ascertain the means of the petitioner-judgment debtor before committing him to civil prison. I do not think that the interest of the petitioner has been affected in any way by virtue of issuance of arrest notice. This petition is devoid of merits. It is dismissed.
Sd/- JUDGE ckl