A.S.GODARA,J. - (1.) THIS Revision Petition has been preferred under Section 115, Code of Civil Procedure (for short 'the Code') against the order dated 28.4.97 whereby the learned Addl. District Judge, Jodhpur in Execution case No. 36/96 ordered for issuance of a warrant of arrest in exercise of powers under Order 21 Rule 37(2) of the Code.
(2.) BRIEFLY stated, the facts relevant for disposal of the present petition, as also alleged by the petitioner are that the petitioner (JD) is resident of Merta City, He is carrying on business at Merta City in the name and under the title of M/s Merta Motors, Merta City, as a sole proprietor. Non -petitioner (DH) is resident of Jodhpur and he is also carrying on business of automobiles under the name and title of M/s S.B.S. Automobiles, Chopasani Road, Jodhpur and Mangal Singh is its sole Proprietor. The decree -holder (non -petitioner) instituted a Civil Original Suit No. 121/94 (No. 79/88) in the court of District Judge, Jodhpur who, in turn assigned the same to the court of Addl. District Judge, Jodhpur who, after a full -fledged trial, passed a decree for principal amount of Rs. 10030/ - along with interest, on 3.6.95. Since the petitioner (JD) did not satisfy the decree and, as a result, the decree -holder filed an application under Order 21, Rule 11 of the Code for realisation of Principal and interest aggregating to Rs. 25525/ - and also requested that the amount may be realised by way of attachment of movable and immovable property. Alternatively, it was also requested that the judgment -debtor may be detained in civil prison by way of initiation of proceedings under Order 21 Rule 37 of the Code. An affidavit in support thereof was also sworn by Bhagwat Singh Proprietor of the decree -holder -firm. During the course of execution proceedings 'the learned Presiding Officer of the Executing Court ordered for issuance of notice under the provisions of Order 21, Rule 37 (i) of the Code against the judgment -debtor and, consequently, on 4.4.97, an objection was raised from the side of the judgment -debtor before the trial court that since the properties of the judgment -debtor were not situated within the territorial jurisdiction of the executing court and, besides, the judgment -debtor himself was also living at Merta City falling within the jurisdiction of Merta judgeship and, as a result, the executing court had had no territorial jurisdiction to execute the decree and to detain the judgment -debtor in civil prison and, after hearing both the sides, on 7.4.97, the executing court repelled all the contentions raised on behalf of the judgment -debtor and, accordingly, ordered for presence/production of the judgment -debtor personally before the court failing which it was also ordered that a warrant of arrest pursuant to Sub -rule (2) of Rule 37 of Order 21 of the Code be issued and, on his appearance/production, an enquiry shall be resorted to as warranted by the provisions of Section 51 of the Code read with Order 21, Rule 40 of the Code. However, the judgment -debtor did not appear before the court and, on 28.4.97, the executing court observed that the judgment -debtor, in compliance of the order dated 7.4.97, inspite of clear order, did not appear before the court and, accordingly, it was ordered that the judgment -debtor be arrested under a warrant of arrest to be so issued and, on his production, enquiry as already observed above and so also warranted by law, shall be gone into and the next date of hearing was fixed for 29.5.97.
(3.) BEING aggrieved, the present petition has been moved on the ground that the executing court, in the aforesaid circumstances, had had no territorial jurisdiction to have embarked upon issuance of warrant of arrest in execution proceedings and, besides, the executing court committed an illegality and serious irregularity while overlooking the mandatory provisions of Sections 38, 39 and 51 as well as Order 21, Rule 37 of the Code and, instead, it was incumbent on the executing court to have transferred execution application for execution to the District Judge, Merta and, in the circumstances, it was also further alleged that the learned trial Judge has also flouted the dictum laid down in Jolly George v. The Bank of Cochin : [1980]2SCR913 .;