Santosh Kumar vs Daya Ram and others

Prayer in this petition filed under Section 482 of the Code

of Criminal Procedure is for setting-aside the order dated 01.11.2012

(Annexure P6) passed by the Civil Judge (Sr. Division), Naranaul vide

which the Civil Court, dismissed the application filed under Order 39

Rule 2-A of the Code of Civil Procedure (in short ''CPC'') and the

judgment dated 09.12.2014 (Annexure P7) passed by the Additional

Sessions Judge, Narnaul, dismissing the criminal revision against the

aforesaid order dated 01.11.2012.

Brief facts of the case are that the petitioner as a

complainant filed a suit for recovery of Rs.56,100/- against respondent

No.1 - Daya Ram (defendant in the suit). Vide decree dated 01.12.2008,

the suit was decreed for recovery of an amount of Rs.56,100/- along

with an interest @ 6% per annum from the date of institution of the suit

till realization of the decretal amount.

The petitioner, as a decree-holder filed an execution

application under Order 21 Rule 11 CPC and in that execution petition,

vide order dated 30.12.2009 arrest warrant were issued against

respondent No.1 - Daya Ram (Judgement-debtor) and on his

appearance before the Court, he was ordered to be sent in civil

imprisonment and he was directed to be kept in civil imprisonment till

04.01.2010 with a further direction that he should be produced in the

Court on that day. However, the Civil Court while issuing warrants to

the jail authorities failed to incorporate the condition that the

Judgement-debtor is to be produced before the Civil Court on

04.01.2010. The warrant of committal of JD in civil imprisonment, sent

by the Civil Court to Superintendent of Jail, Narnaul reads as under:-

"Whereas Daya Ram son of Sadhu Ram JD has been brought before this Court on 30 th December, 2009 in execution of the order passed on 29.11.2009, as he failed to make the payment of recovery, amounting to Rs.56,000/-. Therefore, you are hereby commanded and required to receive the said JD in civil prison and keep him in prison for a period upto 4.1.2010 or until the said amount of Rs.56,000/- is paid by him."

The Superintendent of Jail, Narnaul, on 04.01.2010

released the respondent - Daya Ram from civil imprisonment. The

petitioner filed a contempt petition under Order 39 Rule 2-A CPC with

the allegations that the respondents have violated the order of Civil

Court dated 30.12.2009 as instead of releasing Daya Ram on 04.1.2010

from civil imprisonment, he was to be produced before the Civil Court

for further orders. The Civil Judge (Sr. Division) Narnaul vide

impugned order dated 01.11.2012 dismissed the said application filed

under Order 39 Rule 2-A CPC holding that though in the order dated

30.12.2009 it was mentioned that the JD - Daya Ram will be produced

before the Civil Court on 04.01.2010, however, in the warrant of

committal of JD to civil imprisonment dated 30.12.2009, the Civil

Court failed to incorporate the aforesaid direction that the JD will be

produced before the Civil Court on 04.01.2010 and in the said warrant,

it was only mentioned that the JD be kept in civil imprisonment till

04.01.2010 and, therefore, the jail authorities have not committed any

violation of the order. The petitioner, thereafter, filed a criminal

revision before the Additional Sessions Judge, Narnaul challenging the

order dated 01.11.2012.

At this stage, it may be relevant to note that as per

provisions of Order 43 Rule 1-R CPC, an order passed by the Civil

Court under Order 39 Rule 2-A CPC, is an appealable order before the

District Judge, it seems that this appeal was treated as a criminal

revision by the Additional Sessions Judge, Narnaul and on merits, the

revision petition was heard and dismissed vide impugned order dated

09.12.2014 upholding the finding recorded by the Civil Court that no

violation of the order dated 30.12.2009 is made out.

The present petition under Section 482 Cr.P.C. has been

filed challenging the aforesaid order firstly, passed by the Civil Court

under Order 39 Rule 2-A CPC and secondly, by the Revisional Court.

Though on the face of it, the present petition under Section 482 Cr.P.C

will not be maintainable challenging the order passed by the Civil Court

under Order 39 Rule 2-A CPC as the revision filed by the petitioner

before the Additional Sessions Judge, Narnaul though wrongly

mentioned as criminal revision was in fact a civil appeal within the

provisions of Order 43 Rule 1-R CPC. However, being an old case, I

have heard the case on merits and find no merit in the same.

The Civil Court vide its order dated 30.12.2009 while

issuing a warrant to the jail authorities has directed to keep the

respondent - Daya Ram (JD) in civil imprisonment till 04.01.2010 and

later on, he was released, therefore, there is no violation of the order

passed by the Civil Court as both the Courts below have concurrently

held that no intentional violation on the part of the respondent is made

out as it was a mistake committed by the Civil Court in not mentioning

in the warrant that respondent be produced before the Civil Court.

More so, counsel for the petitioner could not make out a

case that once the petitioner as a decree-holder has filed an execution

petition based on a money decree in which the respondent - Daya Ram

was sent to civil imprisonment as JD and later on released from civil

imprisonment, the petitioner can still pursue his remedy in his

execution petition before the Civil Court, in accordance with law. Thus,

finding no merit, the petition fails and is accordingly dismissed.