CASE TITLE
DILEEPKUMAR VS SRIRAM TRANSPORT FINANCE CO. LTD. & ORS
DATE OF ORDER
20th January 2022
BENCH
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
SUBJECT
Court examines the procedure involved in Order XXI Rule 40 of Civil Procedure Code under which warrant was issued.
FACTS OF THE CASE
- The petitioner is the second judgement debtor in Arb.OP No. 281/2016 filed original petition before the court under Article 227 of the Indian Constitution.
- The petitioner appeared before the honourable court after getting notice under Order XXI Rule 37 of CPC.
- The main contention raised by the learned counsel of the petitioner is that warrant of arrest was issued without conducting proper enquiry by the learned judge of district court under Order XXI Rule 40 of CPC.
- The petitioner submitted that he had no means of paying the decree debt, in pursuance of which the arrest warrant was issued.
- The court examines the procedure which is to be followed in order to issue arrest warrant under Order XXI of CPC.
OBSEVATIONS OF THE COURT
- The High Court held the order of the district court as arbitrary and illegal. Court set aside the impugned order.
- Court directed the learned district Judge to conduct an enquiry in context to the means provided under Order XXI Rule 40 of CPC.
- The court read RULE 40 along with RULE 37 conjointly. It was observed that under Rule 40 two situations are governed. The first is when the judgement-debtor appears after getting notice under Rule 37 of the Code and the second when the judgement-debtor is arrested in execution if the decree and appeared before the court. In the former situation, an enquiry is to be made under Rule 40.
- Court observed that where the debtor has wilfully neglected to pay the decree debt in spite of having sufficient means, no further opportunity is to be provided to the debtor.
- In this case, it was clearly stated by the petitioner that he had no means to pay to the decree debt.
- Court held that the judgement-debtor must be given opportunity to show evidence which could prove his contention of not getting imprisoned.
- Court observed that in pursuance to the conclusion of enquiry and provisions under Section 51 of the code, order FIR detention of the judgement-debtor can be issued if the judgement-debtor fails to furnish the security ordered.
- Since in the present case, the petitioner appeared before the court after getting furnished with the notice under Rule 37 of the code hence it is mandatory to conduct an enquiry under Rule 40 before issuing the warrant of arrest, court held.
CONCLUSION
The observations made by the Kerala High Court clarifies the procedure involved before issuing arrest warrant under Order XXI Rule 40 of CPC. The court clearly stated that where the judgement-debtor had no means to pay the decree-debt and appeared before the court in pursuance to notice, in such case an enquiry shall be conducted before issuing arrest warrant against the judgement-debtor.
