Ismail Sait vs M. Chinniah and another

Abdul Hadi, J.—These two revision petitions are against two different orders of the same date 7.4.1989, for payment of one-third of the

decree amount in two different suits, both against the petitioner one of the said orders was passed in E.A. 350 of 1984 in E.P. 41 of 1983. The

said E.A. is to set aside the ex parte order of arrest passed on 11.7.1984 in E.P. 41 of 1983. The other order was passed in E.P. No.69 of 1986.

Both the said E.P.s are for arrest and detention of the judgment debtor. Both the orders are misconceived. In execution petitions for arrest and

detention, after notice to the judgment-debtor, if the judgment debtor appears before court, then the court has to adopt the procedure provided

under O.21, R. 40 C.P.C. for determining whether the judgment debtor can be committed to civil prison, taking into account what is provided in

S. 51 Proviso C.P.C. Even in the case of the abovesaid E.A. 359 of 1984, for setting aside the ex parte order of arrest, the Court has to see

whether there was sufficient cause for the non-appearance of the judgment-debtor on the relevant date, namely, 11.7.1984. If there was sufficient

cause, it can restore the E.P., if not it should dismiss the E.A. It cannot direct payment of one-third of the decretal amount. The ex parte order

passed on 11.7.1984 is also misconceived. After appearance of the judgment debtor pursuant to the notice in execution petition, the first stage of

ordering arrest has already gone and the second stage of holding enquiry for determining whether the judgment debtor has to be detained in prison,

has reached in the present case. After holding enquiry for the said determination under O.21, R. 40 (1) C.P.C. and while subsequently passing the

order for detention under O. 21, R. 40 (3) C.P.C. the Court no doubt can cause him to be arrested if he is not already under arrest. But, that third

stage, to say, has not reached in the present case. In this connection, the decision in Soundararajan v. Sayee Finance 99 L.W. 48= 1984 2 M.L.J.

214, and my own order dated 11.12.1989 in C.R.P. 1000 of 1989 may be usefully referred to.

Therefore, both the orders are set aside and direction is hereby given to the executing court to follow the procedure prescribed in O.21 R. 40

C.P.C. taking into consideration S. 51 Proviso C.P.C. and dispose of both the E.Ps. within three months from the date of receipt of this order.

The C.R.Ps. are allowed and the respective orders sought to be revised are set aside. No costs.