IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.6407/2018 BETWEEN SRI ABDUL HAMEED S/O MOHAMMED SHAFI MAJOR R/AT OPP. CAPITANIO HIGH SCHOOL NALPAD RESIDENCY PUMPWELL KANKANADY POST MANGALURU – 575 004. ... PETITIONER (BY SRI VISHWAJITH SHETTY S. ADVOCATE) AND MRS SUMATHI W/O SRI. DAMODHARA AGED ABOUT 36 YEARS R/AT NO.1-96-1, KANAPANA HOUSE HOSABETTU, KULAI MANGALURU TALUK, D.K- 575 004 ... RESPONDENT (BY SRI G RAVISHANKAR SHASTRY, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER ANNEXURE-A DATED 03.02.2018 MADE IN EX.CASE NO.06/2018 BY THE COURT OF I ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU, D.K.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri Vishwajith Shetty S., learned counsel for the petitioner.
Sri G.Ravishankar Shastry, learned counsel for the respondent.
The writ petition is admitted for hearing. With consent of the parties, the same is heard finally.
2. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner inter alia seeks a writ of certiorari or any other appropriate writ quashing Annexure-A the communication dated 03.02.2018 passed by the Executing Court in Ex.Case No.6/2018 by which warrant of arrest has been issued.
3. When the matter was taken up today, learned counsel for the petitioner submitted that on receipt of the notice of the Execution proceeding, the petitioner entered appearance through his counsel and filed vakalat and sought time to file objections. However, on the same day, by the impugned order dated 03.02.2018, warrant for the arrest was issued by the Executing Court. It is further submitted that the impugned order is passed without complying the requirement of Order XXI Rule 37 of the Civil Procedure Code, 1908.
4. On the other hand, learned counsel for the respondent has supported the order passed by the Executing Court.
5. I have considered the submissions made by the learned counsel for the parties and have perused the records. The proviso to Section XXI Rule 37 of Code of Civil Procedure, 1908, reads as under:
“37. Discretionary power to permit judgment-debtor to show cause against detention in prison – (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court [shall], instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison: [Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.] (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 judgment–debtor.”
6. From the perusal of the impugned order, it is evident that no such suggestion has been recorded by the Executing Court that the judgment debtor is likely to abscond or leave the local limits of the jurisdiction of the Court with an object of delaying the execution of the decree. In the absence of the condition precedent having been fulfilled, the impugned order is per se without jurisdiction and cannot be sustained in the eye of law and it is accordingly quashed with a direction to the Executing Court to proceed with the execution proceeding in accordance with law. Accordingly, the writ petition is allowed.
Sd/- JUDGE TL