Mohammad Ali Khan, Judgment-debtor vs Mumtaz Jalian Begam, Decree-holder

This is a judgmentdebtors appeal arising out of execution proceedings.

Smt. Mumtaz Jahan Begam obtained a decree for her dower debt against Mohd. Ali Khan on March 2, 1950. The decree was sought to be executed by the arrest and detention of the judgmentdebtor.

It appears that proceedings were initiated under O. 21, R. 40, C.P.C., and after the Court had recorded the evidences of the decreeholder in support of his application for execution, it called upon the judgmentdebtor to produce evidence in rebuttal. The judgmentdebtor prayed that another date be fixed for this purpose and the executing Court treating this as an application for adjournment, adjourned the case on condition of payment of costs by the judgmentdebtor. The judgmentdebtor, however, did not pay the costs, and instead contended that he was entitled as of right to another date and could not be precluded from leading evidence on the adjourned date without payment of costs.

The only point pressed before me on behalf of the appellant is that the judgmentdebtor was entitled, by virtue of O. 21, R. 40(1), C.P.C. to an opportunity of showing cause on a date after the decreeholder had produced his evidence.

Under O. 21, R. 40, when the judgmentdebtor pursuant to a notice under R. 37, is brought before the Court upon being arrested in execution of a decree for payment of money, the Court must first hear the decreeholder and take all such evidence as may be produced by him in support of his execution application. Thereafter the judgmentdebtor is required to show cause why ha should not be committed to the civil prison. The provision seems to contemplate that the decreeholder must first lead evidence and establish a prima facie case. That was the view taken by a Bench of this Court in Harpal Singh v. Lala Hira Lal, AIR 1955 All 402. After such prima facie case has been established the Court will then give the judgmentdebtor an opportunity of showing cause. The words "showing cause" indicate that a judgmentdebtor will then file his reply and lead evidence in support of his case that he should not be committed. As was observed by Raghubar Dayal, J. in the aforesaid case :

"The judgmentdebtor may or may not file any written reply. It is for the decreeholder to lead his evidence in the presence of the judgmentdebtor. Such evidence should be in support of his application for execution and. should have reference to the grounds which, according to the decreeholder, would justify, the arrest of the judgmentdebtor in execution of the decree, and which should be one of the grounds mentioned in cls. (a) to (c) to proviso to Section 51. It is when the decreeholder has, led "prima facie" evidence in support of his application that the judgmentdebtor has to be given an opportunity of showing cause why he should not be committed to the civil prison."

The judgmentdebtor may elect to produce evidence there and then, or may apply for a data for this purpose. It Is, not necessary that the Court should issue a notice to the judgmentdebtor requiring him to show cause. The provision contemplates that the judgmentdebtor is present in person. There is no reason why the Court cannot require the judgmentdebtor to show cause forthwith against being committed to prison. The question whether in the circumstances of a particular case the Court should require him to do so forthwith on some other date is a matter within the judicial discretion of the Court. Iit may be that having regard to the peculiar difficulties of the judgmentdebtor or considering the evidence led by the decreeholder it may be desirable to afford an opportunity to the judgmentdebtor to lead evidence on some other date. But that is not to say that the judgmentdebtor is entitled is of right to another date.

There is no duty upon the Court that upon the evidence of the decreeholder being recorded, it must adjourn the case to another date to enable the judgmentdebtor to show cause. The law merely required that the judgmentdebtor should have an opportunity of showing cause. Whether he is afforded an opportunity on the same date or upon some other date will depend upon the circumstances of each case. The use of the word "then"

in the provision requiring the Court to give the judgmentdebtor an opportunity of showing cause does not mean that the Court necessarily has to adjourn the case to another date. As I have said above, that is a question to be determined in the judicial discretion of the Court :

In view of the matter the contention raised on behalf of the appellant cannot be accepted. The appeal fails and is dismissed with costs.

Appeal dismissed.