ANIL RATHI Vs. MAHALAXMI FILM DISTRIBUTORS

JUDGEMENT

(1.) Being aggrieved by the order dated 27-3-2006 passed by II ADJ, Indore in execution case No. 6/2003 whereby the application filed by the petitioner for review of the order dated 5-10-2005 was dismissed and the order of warrant was issued for compliance of the order dated 16-4-2005 whereby the petitioner was sent to jail for a period of one month, the present petition has been filed.

(2.) Short facts of the case are that petitioner is Proprietor of M/s. Shree Ganesh Products. There was an award against the petitioner for a sum of Rs. 14 lacs along with interest @ 24% per annum with effect from 6-4-1996. It is submitted that execution petition was filed against the petitioner for realization of Rs.36,89,375/- together with interest. During the pendency of the execution proceedings, the respondent filed an application under Order XXI, Rule 37, CPC. wherein it was prayed that since the petitioner is not paying the decreetal amount, therefore, petitioner be sent to civil jail. Vide order dated 16-4-2005, the executing Court directed that petitioner be sent to jail for a period of one month. Being aggrieved by the order dated 16-4-2005, an application for review was fiied which was allowed and vide order dated 4-10-2005, the order dated 16-4-2005 for sending the petitioner to jail was recalled and an opportunity was given to the petitioner for filing the reply of the application filed by the respondent under Order XXI, Rule 37, CPC. After hearing the parties, vide order dated 21-3-2006, learned Court below allowed the application filed by the respondent under Order XXI, Rule 37, CPC and directed that petitioner be sent to jail in accordance with the order dated 16-4-2005. It was also directed for issuance of warrant against the petitioner.

(3.) Learned counsel for petitioner submits that the order passed by the Court below deserves to be set aside. It is submitted that order dated 16-4-2005 was already recalled vide order dated 4-10-2005, thus, in the eye of law, there was no order dated 16-4-2005, thereafter, the petitioner could not have been sent to jail in compliance with the order dated 16-4-2005. Learned counsel further submits that petitioner has stated in his reply that there are number of decrees against the petitioner and it is not possible for the petitioner to clear the dues from his family property in which the petitioner is having only a share as property belongs to undivided joint Hindu family. Learned counsel further submits that for application of Order XXI, R. 37 the power has to be exercised by the Court under Section 51, CPC. It is submitted that as per the provisions of S. 51, CPC where that decree is for payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied :