Mathai Varkey vs Varkey Ouseph

Kunhi Raman, C.J.—The Appellant is the 1st Defendant judgment-debtor. The decree-holder applied for a warrant of arrest evidently supported by an affidavit filed by him. The Appellant was arrested and produced before the executing Court. He asked for permission to pay Rs. 25 forthwith and for time for paying the balance. The executing Court ordered him to pay Rs. 50/- forthwith. The direction was complied with. He wanted further time to pay. The decree-holder did not object and therefore he was released. Since he did not show any inclination to make any payment towards the decree debt, the decree-holder applied for a fresh warrant of arrest. Having come to know that there was such an application made to the Court, the Appellant appeared in Court, before any notice was served on him and before a warrant was issued for his arrest and he made are request that the Court should hold an enquiry. Both the Courts below have refused to grant this request.

We are not prepared to accept the reasons given in the orders passed by both the Courts below for declining to interfere. The question before us is whether the refusal is opposed to any provision of law. The learned advocate appearing for the Appellant invites the attention of the Court to Order 21, Rule 38, Travancore CPC and he says that it is incumbent upon the decree-holder in a case like the present to appear before the Court and give evidence to satisfy the Court that his prayer for committing the judgment-debtor to the civil prison is warranted by the circumstances of the case. But the clause relied on by the learned Counsel mentions the stage at which such a request could be made. There are two alternative stages. The first is where the judgment-debtor appears before the Court in obedience to a notice issued under Rule 35. The alternative stage is where the judgment-debtor is brought before the Court after being arrested in execution of a decree for the payment of money. Neither of these conditions has been fulfilled in this case. Therefore, it was premature for the judgment-debtor to appear before the Court and demand that there should be an enquiry held.

In the circumstances, the view taken by the Court below that the prayer for the enquiry cannot be granted is correct though we are not prepared to accept the reasons given in the judgment of the lower appellate Court. The second appeal must, therefore, be dismissed with costs. C.M.P. 48 of 1950 is dismissed. Communicate at once.