The judgment debtor in the instant case is a woman who can never be arrested and detained in civil prison in execution of a decree for the payment of money in view of the embargo under Section 56 of the CPC. A judgment debtor who is a woman thus enjoys a statutory protection against her arrest and detention in civil prison in execution of a decree for money. A notice to show cause under Order XXI Rule 37 of the CPC is infact a forerunner to the issue of warrant of arrest and it becomes an exercise in futility if the judgment debtor is a woman. Such a notice cannot be issued in terrorem in order to frighten the judgment debtor who is a woman to squeeze out money from her when she enjoys protection against her arrest and detention. It is immaterial as to whether the judgment debtor being a woman raises a plea of 'no means' or not when she is not liable to be arrested and detained at any rate.
Kerala High Court
V.M.Abdul Hameed vs Ramani
2. The petitioner had obtained a decree for money against the respondent in O.S. No.867/2011 on the file of the Court of the Subordinate Judge of Ernakulam and the same was put into execution in E.P. No.50/2003. The decree directed the respondent to pay a sum of `.3,00,000/- (Rupees three lakhs only) to the petitioner along with future interest at the rate of 12% per annum from the date of suit. The execution court refused to issue notice under Order XXI Rule 37 of the Code of Civil Procedure, 1908 (the 'CPC' for short) to the respondent. The petitioner thereupon filed E.A. No.608/2013 insisting on the issue of notice under Order XXI Rule 37 of the CPC to the respondent which OP (C) No.1919 of 2014 has been dismissed by the court below. The contention of the petitioner that there is no bar in issuing notice to the respondent even though she is a woman obviously did not find favour with the court below. This original petition has been filed seeking to annul the order of the court below refusing to issue notice to the respondent and expedite the proceedings in execution.
3. Mr.Sivan Madathil, Advocate on behalf of the petitioner strenuously contends that the execution court is obliged to issue notice under Order XXI Rule 37 of the CPC to the respondent as sought. The question of arrest and detention in civil prison of the respondent would arise only if a plea of 'no means' is raised and turned down by the execution court. It is the case of the petitioner that the respondent has already transferred her immovable and movable property in favour of her close relatives in order to screen it from being proceeded against in execution. The petitioner adds that the respondent should at least be slapped with a show cause notice against arrest and detention in a bid to realise the decree amount. The OP (C) No.1919 of 2014petitioner suggests that a veiled threat of arrest and detention in civil prison may perhaps prompt the respondent to discharge the decree debt.
4. Order XXI Rule 37 of the CPC reads thus:
"37. Discretionary power to permit judgment debtor to show cause against detention in prison - (1) Notwithstanding anything in these rules where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment debtor who is liable to be arrested in pursuance of the application, the Court (shall), instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison:
(Provided that such notice shall not be necessary if the Court is satisfied, by affidavit or otherwise, that, with the object of effect of delaying the execution of the decree, the judgment debtor is likely to abscond or leave the local limits of the jurisdiction of the Court).
(2) Where appearance is made in
obedience to the notice, the court
shall, if the decree holder so requires, issue a warrant for the arrest of the judgment debtor." (emphasis supplied) . It is clear therefore that notice to show cause against arrest and detention in civil prison can be issued to the judgment debtor only if he is liable to be arrested in the proceedings for execution of a decree for the OP (C) No.1919 of 2014 payment of money. No notice to show cause against arrest and detention in civil prison can be issued to the judgment debtor if no warrant of arrest at all could be issued even at a later point of time.
5. The judgment debtor in the instant case is a woman who can never be arrested and detained in civil prison in execution of a decree for the payment of money in view of the embargo under Section 56 of the CPC. A judgment debtor who is a woman thus enjoys a statutory protection against her arrest and detention in civil prison in execution of a decree for money. A notice to show cause under Order XXI Rule 37 of the CPC is infact a forerunner to the issue of warrant of arrest and it becomes an exercise in futility if the judgment debtor is a woman. Such a notice cannot be issued in terrorem in order to frighten the judgment debtor who is a woman to squeeze out money from her when she enjoys protection against her arrest and detention. It is immaterial as to whether the judgment debtor being a woman raises a plea of 'no means' or not when she is not liable to be arrested and detained at any rate.
OP (C) No.1919 of 2014
6. I do not find any infirmity in the order of the court below refusing to issue notice under Order XXI Rule 37 of the CPC to the respondent who is a woman in execution of the decree for realisation of money. The petitioner is free to resort to other modes of execution against the respondent for realising the amount due under the decree even though personal execution cannot be had.
The Original Petition is rejected in limine.
Sd/-
V.CHITAMBARESH, Judge.
nj.
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