Satyanarayana Raju, O.C.J. - (1.) C.M.A.No. 281 of 1963 is filed against an order of the Subordinate Judge's Court, Kakinada, made an on execution petition. The order reads as follows :- "Counter of second judgment-debtor alone is filed, on 9th August, 1963. Second judgment debtor called-absent. Ex parte. Affidavit discloses grounds for arrest. Arrest second judgment - debtor-20th September, 1963."
(2.) It is contended by the learned counsel for the appellant that this order contravenes the provisions of section 51 of the Code of Civil Procedure inasmuch as there was no enquiry and a finding as contemplated by that section. It is, however, argued by Sri M. Suryanarayanamurthy, learned counsel for the decree-holder, that where a Court issues a warrant either under sub-rule (1) or under sub-rule (2) of rule 37, it does not do so with the intention of committing the person against whom the warrant is issued to prison ; that it only issues such a warrant to secure the presence of such a person in Court, and that, therefore, the provisions of section 51 or Order 21, rule 40, are not applicable to such a case. Authority for this view is to be found in the judgment of Mudholkar, J., (as he then was) in Madhusudan Prabhakar Chitale v. Trimbak Vyankatesh Joshi ., A.I R.1961 Bom. 23.
(3.) In a case like the present, the provisions of Order 21, rule 40, will apply only at a later stage, that is, after the judgment-debtor appears in Court in pursuance either of a notice or a warrant. In this view the order of the learned Judge is right. When the appellant appears in Court, the learned Judge will no doubt make an enquiry as required by Order 21, rule 40 and section 51 of the Code of Civil Procedure. This appeal is dissmissed with costs.;