When judgment debtor pleads ‘no plea’, enforcement court must investigate before issuing arrest warrant: Kerala High Court

The High Court of Kerala has recently ruled that if a judgment debtor appears in court after receiving a notice and claims that he has no means to repay the decreed debt, the court is bound to investigate this claim before issue an arrest warrant. under Ordinance XXI, Rule 40 of the Code of Civil Procedure.

Judge A. Badharudeen explored the question of what is the procedure to follow before the issuance of a warrant of arrest in execution of a decree of payment of money.

The tribunal was hearing an initial motion filed by a second judgment debtor aggrieved that despite filing an objection that he could not afford to pay the executive order debt, a warrant for his arrest was issued without conducting inquiry under section 40.

The Court noted that Rule 37 of Order XXI provides that instead of issuing a warrant for his arrest, a notice may be issued calling on the debtor to appear before the Court on a specified date and to justify why. he should not be incarcerated in the civil prison. .

However, his reservation prescribes that such a Ker notice is not necessary if the Court is satisfied that the judgment debtor is likely to abscond or leave the local limits of his jurisdiction for the purpose of delaying the execution of the decree.

Further, Rule 37(2) provides that if the appearance is not made in accordance with the notice, the court shall issue a warrant for the judgment debtor’s arrest if the judgment holder so requests.

“Thus it appears that, pursuant to the proviso of Rule 37 of Order XXI, a warrant of arrest may be issued without notice under Rule 37(1), if the Court is satisfied by affidavit or otherwise that, with the object or 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”, observed the judge.

It was also found that Rule 40 deals with two situations.

  • where the judgment debtor appears after being notified under Rule 37
  • when the debtor is brought before the court after having been arrested in execution of an order for the payment of money before justifying his resources.

Reading ss. 37 and 40 together, the Court noted that the CPC contemplated only one investigation of the judgment debtor’s liability for detention in prison pursuant to a pecuniary decree. Therefore, the judgment debtor is not entitled to another possibility after the court finds that he has sufficient means and has deliberately neglected to pay the debt of the decree.

This implies that when the judgment debtor appears on a notice issued under section 37 or is brought before the court after being arrested, the latter hears the holder of the decree and collects all the evidence produced by him at support of his application for enforcement, and then gives the judgment debtor the opportunity to present the reasons why he should not be incarcerated in a civil prison.

In that case, the petitioner had appeared in court after being notified under section 37 and had filed an objection stating that he could not afford to pay the debt of the decree.

In such an eventuality, it is mandatory for the Court to conduct an investigation under Article 40 before issuing a warrant for his arrest. Yet the district judge had not investigated to determine the authenticity of this claim before issuing the warrant.

In light of the case, the district court’s order was found to be illegal per se and requiring perverse, arbitrary and illegal interference.

The contested order was therefore quashed. The District Judge was also instructed to consider the objection filed by the Petitioner and conduct an investigation into the grounds under Rule 40 and re-issue orders based on said finding within two months.

Case title: Dileepkumar c. Sriram Transport Finance Co. Ltd & Ors.

Quote: 2022 LiveLaw (Ker) 41

Click here to read/download the order