Govinda Menon, J.:— The petitioner was tried before the Sub-Magistrate of Cannanore on a complaint preferred by P.W 1, a process server of the Munsiff Court of Tellicherry for offences punishable under sections 225B and 353, I.P.C The learned Magistrate acquitted the accused of the offence under section 353, but convicted him under section 225B and sentenced him to pay a fine of Rs. 100.
2. The facts that led up to the case are as follows:—The father of P.W 4 obtained a decree against the petitioner in O.S 531/50 on the file of the Munsiff's Court of Tellicherry. By assignment P.W 4 got the right of the decree-holder and as the petitioner did not pay the decree amount, he filed an execution application for the arrest and detention of the petitioner in the civil jail. The District Munsiff ordered notice and arrest warrant to be issued simultaneously. The warrant was signed by the Head Clerk under the authorization by the District Munsiff. The warrant was then sent to P.W 3, the Central Nazir, who deputed P.W 1 for service of notice and to arrest the judgment-debtor. On 2nd August, 1960 P.W 1 the process-server accompanied by P.W 4 set out in search of the petitioner. They met him in his house and P.W 1 served the notice Ext. P. 6 and after obtaining his acknowledgment showed the warrant Ext. P. 1 to the petitioner. The petitioner signed the warrant and received the subsistence allowance. P.W 1 then asked the petitioner either to pay the decree amount or to accompany him to court. The petitioner abused P.W 1 and attempted to leave the place. P.W 1 then caught hold of him. The petitioner pushed him aside and escaped from his custody. The same day P.W 1 made a report to the court and that report was forwarded with a covering letter to the Circle Inspector of Police, Cannanore. The Sub Inspector of Police, Edakkad registered a case but after investigation the case was referred. Thereupon a private complaint was filed by P.W 1 and on a consideration of the evidence adduced before him the learned Sub-Magistrate found the accused guilty and convicted him. The matter was taken up in appeal before the District Magistrate of Tellichery, who on a reappraisal of the evidence found that the petitioner had in fact been arrested and that he had escaped from lawful custody and confirmed the conviction and the sentence. Aggrieved with the order this revision petition has been filed. That the petitioner had been arrested and he escaped from custody is amply proved by the evidence adduced by the prosecution and has been concurrently found by the courts below. Learned counsel for the petitioner, therefore, rightly did not challenge this finding. His main argument was that the apprehension of accused is not lawful because the warrant on which the arrest was made was not lawfully issued and as there is no legal arrest, escape from custody would not amount to an offence. It is contended that the order of arrest is illegal; firstly because there has not been a compliance with Section 51 of the Civil procedure Code; and secondly the notice to show cause against the execution as required under Order XXI, R. 22 has not been given to the petitioner. Learned counsel for the complainant and the Public Prosecutor would contend that the order that has been passed is one of arrest and as such Section 51 of the Code is inapplicable. According to them the relevant provisions are rules 37 and 40 of O. XXI. It is stated that section 51 comes into play only when an order of detention is to be passed.
3. To properly understand the respective contentions, it is desirable to set out the relevant provisions of law. Rule 37 of Order XXI reads:
“(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 statisfied 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.
(2) Where appearance is not 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.”
4. Rule 40 of O. XXI reads:
“(1) When a judgment-debtor appears before the court in obedience to a notice issued under R. 37, or is brought before the court after being arrested, in execution of a decree for the payment of money, the court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison.
(2) Pending the conclusion of the enquiry under sub-rule (1) the court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the court or release him on his furnishing security to the satisfaction of the court for his appearance when required.
(3) Upon the conclusion of the enquiry under sub-rule (1) the court may, ‘subject to the provisions of S. 51’ and to the other provisions of this code, make an order for the detention of the judgment-debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest……..”
5. In this case it is not denied that the necessary notice under R. 37 had issued. In fact what was done was to issue notice and arrest warrant simultaneously. In a Division Bench ruling of this court in Thangal…Accused v. State Of Kerala…. (1961 K.L.T 353) it was held that the procedure in ordering notice and arrest to issue simultaneously even though not quite proper, on that ground the warrant of arrest which is otherwise valid cannot be considered to be defective or illegal.
6. Sub-rules (1) and (2) of R. 40 provide for the arrest and the custody of the judgment-debtor, whereas sub-rule (3) of R. 40 deals with the detention of the judgment-debtor in the civil prison. It is only when an order under sub-rule (3) of R. 40 has to be made, it will have to be made subject to the provisions of Section 51.
7. We may now see Section 51 of the C.P.C The relief prayed for falls under clause (c) of Section 51, but we are concerned with the proviso to Section 51(1), C.P.C It is as follows:
“Provided that where the decree is for the 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 shall not be committed to prison, the court for reasons recorded in, writing is satisfied……”
8. The court will have to be satisfied that one or the other of the conditions set out under that proviso is applicable to the facts of the case before ordering the detention of the judgment-debtor. There can be no doubt that the inhibition contained in Section 51 is not made applicable while ordering the arrest of the, judgment-debtor.
9. We may in this connection refer to the decision in Londa Abbayee of Pithapuram v. Surianarayana (A.I.R 1948 Mad. 9). His Lordship Horwill, J. after a careful examination of the relevant provisions has come to the conclusion that the mandatory proviso to Section 51 will have to be satisfied only while committing the judgment-debtor to the prison and not at the earlier stages.
10. This decision has been followed in a Division Bench ruling of the Mysore High Court in Puttaramiah v. Hajee Ibrahim Essack (A.I.R 1959 Mysore 94), where Their Lordships stated that the proviso to Section 51 refers only to execution by detention in prison and not to execution by arrest and detention in prison and that the need for the court to be satisfied that the conditions mentioned therein exist and the recording of reasons applies only to an order in prison and not to arrest.
11. In a recent decision of the Bombay High Court in Madhusudan Prabhakar Chitale v. Trimbak Vyankatesh Joshi* (A.I.R 1961 Bom. 23) Mudholkar, J., observed:
“Where a court issues a warrant either under sub-rule (1) or under sub-rule (2) it does not do so with the intention of committing the person against whom a warrant is issued to prison. It only issues such a warrant to secure the presence of such a person in court. For these reasons the provisions of S. 51 or O. XXI, R. 40 are not applicable. The provisions of the latter rule would apply at a later stage, that is, after the judgment-debtor appears in court, in pursuance either of a notice or a warant.”
12. We have been referred by the petitioner's learned counsel to the decision in Kunhiraman v. Madhavan Nair (A.I.R 1957 Mad. 761). In that decision His Lordship Panchapakesa Iyer has observed:
“The mandatory provisions of S. 51 must be complied with before arrest is ordered. Where the lower court does not say that in its opinion the judgment-debtor has had, since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and has refused or neglected to pay the same the order of arrest is illegal and has to be set aside. Even when the order is passed ex parte, the provisions of the section must be complied with. Ex parte orders of arrest and order of arrest after contest are exactly on the same footing and section 51 makes no difference whatever between the two cases.”
13. The learned Judge has taken the same view in an earlier case in Vankatasubba Rao v. Majeti Sreeramulu (A.I.R 1949 Mad. 470). This appears to be the view taken by the Allahabad High Court, in Ch. Harpal Singh v. Lala Hira (A.I.R 1955 All. 402) and in Mansukharam v. Mukhram (I.L.R 10 Raj. 1467).
14. With great respect to the learned Judges who decided the cases we are unable to agree with the view taken in those cases.
15. We do not say that in every case the executing court should postpone inquiring about the requirements of section 51 C.P.C till the stage of detention is arrived at. As a general rule it may be convenient and proper that any enquiry is to the liability of the judgment-debtor to be committed to civil prison should be made before the arrest is ordered, but such a determination is not a condition precedent for the order of arrest itself.
16. The next objection taken is that when an application for execution is made more than two years beyond the disposal of the last previous execution application the court should issue a notice to the judgment-debtor to show cause why the decree should not be executed against him and in this case as it has not been done there is a violation of the madatory provisions of law. It is true that in the ordinary course, notice under Order XXI, rule 22(1) should be issued before taking further proceedings by way of arrest or attachment of property. But there is in Rule 22(2) the power to issue any process in execution of a decree without issuing a notice if for reasons to be recorded the court considers that the issue of such a notice would cause unnecessary delay and would defeat the ends of justice. Clause (2) of rule 22 is in the following terms:
“(2) Nothing in sub-rule (1) shall be deemed to preclude the court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.”
17. The prosecution has conceded that in this case no notice as contemplated under Order XXI, rule 22 was taken out to the petitioner. There is also no case that under clause (2) of the learned Munsiff had recorded his reasons for waiving the issue of such notice. The question is what is the effect of the omission.
18. Learned counsel for the petitioner placed strong reliance on the decision of the Privy Council in Raghunath Das v. Sunder Das Khetri (A.I.R 1914 P.C 129) in support of his submission that the issue of the notice under Order XXI, rule 22 is a condition precedent to the validity of the execution proceedings and failure to do so will render the proceedings null voild. In the case cited above, the judgment-debtor having become insolvent, his properties had vested in the Official Assignee. When the decree-holder took out execution a notice was issued to the Official Assignee to show cause why he should not be substituted for the debtor but there was no notice to show cause why the decree should not be executed. It was, therefore, a case of omission to issue notice under the rule. The execution proceeded and the properties of the debtor were sold in court auction. The question before the Privy Council was whether the sale was void or only voidable. Their Lordships of the Privy Council held that a notice under the rule was necessary in order that the court should obtain jurisdiction to sell the property, that the notice to show cause against substitution was not enough and that the same was, therefore, void and the purchaser obtained no title.
19. Since the above decision of the Privy Council all the High Courts except the Madras High Court had approved this view. The Madras High Court in Doraiswami v. Chidambaram Pillai (A.I.R 1924 Mad. 130), however, still continued to hold that the sale was only voidable and not void distinguishing the Privy Council case on the ground that it was a case under the old Code which contained no provision similar to that contained in the present sub-rule (2) and that in view of the recognition in the present sub-rule (2) of the court's discretion in the matter of issuing notice there was no longer any question of want of jurisdiction.
20. The matter came up before a Full Bench of the same High Court in Rajagopala Aiyar v. Ramanujachariyar (A.I.R 1924 Mad. 431) which finaly laid down that a sale held under the circumstances mentioned above was void for want of jurisdiction and not merely voidable.
21. This view was affirmed by another Full Bench of the same High Court in Kanchanamalai v. Shahaji (A.I.R 1936 Mad. 205), in which it was held that even if the judgment-debtor died after the property had been attached and ordered to be sold, the absence of notice to the legal representative under this rule would render the same void.
22. Thus it may be taken as well settled that in cases of a total omission to issue a notice under the rule the sale is absolutely void and not merely voidable.
23. But it cannot be forgotten that the only object of the rule is to give the person concerned an opportunity to show cause against execution. Thus in Chandra Nath v. Nabadwip Chandra (A.I.R 1931 Cal. 476), Rankin, C.J, observed that it was quite unnecessary to push the abstract logic of the Privy Council case to a ridiculous extreme, and that it seemed to him to be merely ‘piling unreason upon technicality’ to hold that it was open to the judgment-debtors to object to the jurisdiction of the court because they did not get a formal notice to do something, namely, to dispute, the execution of the decree, when in point of fact they were busy disputing about it in all the courts for the best part of the last two years. It was further stated that all that Order XXI, rule 22 required was that an opportunity should be given to the judgment-debtors against whom execution was taken out more than a year after the decree to show cause why execution should not proceed, and that where a notice under Order XXI, rule 66 having been given the parties were disputing about the execution of the decree the failure to give notice under Order XXI, rule 22 was not an illegality.
24. Likewise in the case in Sunder Ram v. Harnangi Ram (A.I.R 1933 Patna 289) it was held that where the applicant had notice of the execution proceedings by reason of the notice under Order XXI, rule 66 the absence of a separate notice under Order XXI, rule 22 was not fatal.
25. A similar view appears to have been upheld in Vengu Chetty v. Valjee Kaniee & Co. (A.I.R 1936 Mad. 99), where the guardian-ad-litem of a minor judgment-debtor had appeared before the executing court and had asked for time to file his objection.
26. In Ladli Parshad v. Chaman Lal (A.I.R 1939 Lahore 473), it was held that where notice of execution proceedings and sale thereunder was issued under Order XXI, R. 66 and the judgment-debtor appeared and contested the proceedings the failure to give notice under Order XXI, rule 22 and the omission to record reasons for dispensing with this notice was no more than an irregularity which did not take away the jurisdiction of the court.
27. The same view appears to have been taken in Bandu Hari v. Bhagya Laxman (A.I.R 1954 Bom. 64).
28. It is unnecessary to multiply authorities. Therefore in cases falling within the scope of Rule 22, Order XXI, a notice must broadly speaking be given to the judgment-debtor to show cause why the decree should not be executed against him. It is highly desirable that such a notice should be given. The object of the rule requiring the giving of notice is to give the judgment-debtor an opportunity to show cause against execution. Where, therefore, as in this case the judgment-debtor has been served with a notice under Order XXI, rule 37 and has thus been made aware of the application pending against him, or where he otherwise had an opportunity of appearing and contesting the application on the merits, it would be going too far to hold that the proceedings are illegal, unless the judgment-debtor is able to show that prejudice has been caused to him by the omission to give notice under Order XXI, rule 22, C.P.C Thus although the failure to give the notice may be an irregularity, it does not amount to an illegality vitiating the execution proceedings, because the execution occasions, no surprise to the judgment-debtor and the object of the rule to give him notice of execution has otherwise been achieved.
29. In this connection reference may be made to the amended rule 22 made by our High Court by notification published in the Kerala Gazette dated 9th June, 1959. The proviso added to clause (2) of R. 22 is in the following terms:
“Provided that no order for execution of a decree shall be invalid owing to the omission of the court to record its reasons unless the judgment-debtor has sustained substantial injury as the result of such omission.”
30. So the court had the right to waive the notice under Clause (2) of rule 22, but had only to record reasons why it was done and under the proviso, failure to record reasons will not vitiate the orders passed by the court. Certain decisions which have held that failure to issue notice under Order XXI, rule 22 vitiates the entire proceedings placed before us have omitted to consider the effect of the proviso added to Clause (2) of rule 22. Thus the failure to give notice to the petitioner under Order XXI, rule 22 when he had already been served with a notice under Order XXI, rule 37, will be a needless formality and need not be insisted upon and we hold that the failure to give the notice cannot have the effect of vitiating the execution proceedings or the steps taken thereunder. The order of the learned Munsif cannot, therefore, be assailed on this ground also. The order of arrest made by the Munsif and the arrest by the process-server are, therefore, perfectly legal and escape from such custody would amount to an offence under Section 225B, I.P.C The conviction has only to be confirmed. The only thing that remains to be considered is the last submission made by the learned counsel for the petitioner that his client is a school master and if the fine imposed exceeds rupees fifty he would stand the risk of losing his job. That by itself may not be a sufficient reason to reduce the sentence awarded in this case which is not at all excessive. However since by this protracted litigation the accused must have learnt a bitter lesson, we are inclined to take a lenient view and reduce the fine from Rupees hundred to Rupees forty. In default the petitioner will undergo simple imprisonment for one month. With this modification the revision petition is dismissed. Excess fine, if collected, would be refunded.