C.R.P. No. 70 of 2009. Case: Nirmalendu Dhar Vs Nani Gopal Ghosh. Guwahati High Court
| Case Number | C.R.P. No. 70 of 2009 |
| Counsel | For Appellant: P. Roy Borman, Advt. S. Bhattacharjee and For Respondents: S. Deb, Sr. Adv., S. Choudhury, Advs. |
| Judges | M. B. K. Singh, J. |
| Issue | Civil Procedure Code - Rule 37 |
| Citation | AIR 2010 Gau 59 |
| Judgement Date | December 02, 2009 |
| Court | Guwahati High Court |
Judgment:
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Heard Mr. P. Roy Barman, learned counsel appearing on behalf of the petitioner and Mr. S. Deb, learned senior counsel appearing on behalf of the respondent.
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This application under Art. 227 of the Constitution of India has been filed praying for quashing and cancelling the orders dated 25-8-2009 and 27-8-2009 passed by the learned Civil Judge (Sr. Divn.), Kailashahar, North Tripura in Case No. Execution 03(M)/2009.
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The present petitioner and the present respondent are the judgment-debtor and the decree-holder respectively in the said Execution 03(M)/2009, which was filed by the decree-holder for execution of a decree passed in his favour on 5-10-2007 in case No. M.S. 02 of 2007. On the day on which the said decree-holder filed his application under Order 21, Rule 11 of the CPC for the execution of the decree by arrest and detention of the judgment-debtor in civil prison and/or by attachment and sale of his movable and immovable properties for realisation of the decretal amount of Rs. 2 lakhs, the learned Civil Judge (Sr. Divn.), Kailashahar, North Tripura, passed the impugned order on 25-8-2009 issuing warrant of arrest against the judgment-debtor and also issuing writ of attachment of the movable property of the judgment-debtor. The impugned order dated 25-8-2009 was purportedly passed after hearing the counsel of the decree holder and also after taking into consideration of the provisions of Order 21, Rule 22(a) and Order 21, Rule 30 of the CPC. The judgment-debtor was neither notified nor heard before passing the impugned order dated 25-8-2009. The impugned order dated 27-8-2009 was only an affirmation and continuation of the said order dated 25-8-2009 by directing the O.C. Kailashahar Police Station and the Najir of the District Judge's Court, North Tripura, Kailashahar, to take appropriate steps and to render police help in respect of the execution of the warrants of arrest and attachment. On 27-8-2009 also, the learned Civil Judge (Sr. Divn.), Kailashahar, North Tripura, did not pass any order for issuing notice to the concerned judgment-debtor.
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It is the case of the petitioner that by issuing the said warrants of arrest and attachment straight away on the day on which the application for execution of the decree was filed without issuing any notice to the judgment-debtor to show cause and thereby without giving any opportunity of being heard to the judgment-debtor, the learned civil Judge (Sr. Divn.), Kailashahar, North Tripura proceeded in violation of the provisions of Section 51, Order 21, Rule 11A, Order 21, Rule 17, Order 21, Rule 37 and Order 21, Rule 40 of CPC and also unfairly and unreasonably in violation of the well settled principles of law settled by the Hon'ble Apex Court in Jolly George Varghese v. The Bank of Cochin, (1980) 2 SCC 360: (AIR 1980 SC 470) regarding the procedure to be adopted by a Court issuing a warrant of arrest for arrest and detention in execution of a decree and as such, the impugned orders are liable to be interfered with by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India in order to keep the concerned Court of learned Civil Judge (Sr. Divn.) within the bounds of its authority.
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On the other hand, it is the case of the respondent that this application under Article 227 of the Constitution of India is not maintainable. According to the learned senior counsel of the respondent, the power of superintendence conferred by Article 227 is to be exercised most sparingly and it should not be invoked to correct mere errors of fact or of law. The learned senior counsel of the respondent refers to various decisions including Waryam Singh v. Amarnath, AIR 1954 SC 215; T. C. Basappa v. T. Nagappa, AIR 1954 SC 440: Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675: (AIR 2003 SC 3044); Radhey Shyam Gupta v. Punjab National Bank (2009) 1 SCC 376: (AIR 2009 SC 930); Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616: (2009 AIR SCW 4006) and M/s. M.M.T.C. Ltd. v. Commissioner of Taxes, AIR 2009 SC 1349. Further according to the respondent, there has not been any infraction of any provision of the relevant law in passing the impugned orders and as such, no interference is called for in respect of the impugned orders. According to the learned senior counsel of the respondent, since the application for execution of the decree was filed with in a period of two years from the date of the decree, having regards to the provisions of Order 21, Rule 22, the Court executing a decree was not under any legal obligation to issue any notice to the judgment-debtor requiring him to show cause. Further, according to the learned senior counsel of the respondent, since the decree was for payment of money, it could be executed by detention in the civil prison of the judgment-debtor or by the attachment and sale of his property or by both and as such, there was no illegality on the part of the learned civil Judge (Sr. Divn.), Kailashahar, North Tripura, in passing the impugned orders. The learned senior counsel appearing on behalf of the respondent submits that the correctness of the decision in Jolly George Verghese (supra) was doubted in Ram Narayan Agarwal v. State of U.P. (1983) 4 SCC 276: (AIR 1983 SC...
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