Balakrishna Rao Vs. State of Mysore and ors.

- code of civil procedure, 1908. order 21 rule 37 to 40: [a.s. pachhapure, j] issue of warrant against the judgment debtor - procedure to be followed challenge to order of executing court directing the arrest of the judgment debtor without show cause notice - held, to issue warrant of arrest against the judgment debtor, the court has to adopt the procedure prescribed under the provision of order 21 rule 37 to 40 of c.p.c., it is necessary to note that, when the personal liability of an individual is to be taken away under an order directing the arrest, it is necessary in law to issue a show cause notice. there must be material to prove that the judgment debtor is avoiding the payment despite the fact that he has sufficient means to pay and then the court has to pass appropriate order issuing the warrant of arrest. the procedure followed by the executing court is contrary to the provisions of order 21 rule 37 to 40. impugned order was set aside and matter remitted to executing court for fresh consideration. - it cannot be inferred from the mere order of the subdivisional magistrate that all the conditions of his jurisdiction have been satisfied......subdivision, chickma-galur to vacate the house in which they are living as tenants of respondent no. 2 or to show cause against the order. the petitioner appeared to show cause. the subdivisional magistrate inspected the house on 2-12-1972 and passed the final order under section 137, cr. p. c. directing the petitioner and respondent no. 3 to vacate the house within a period of 30 days from the date of service of the order on them, failing which they would be evicted forcibly by the police. it is this order that is challenged in this petition.2. under section 137, cr. p, c, it is the duty of the magistrate to take evidence as basis for the order he has to make. the subdivisional magistrate inspected the building, but did not take evidence. his proceedings consequently show only his opinion that the structure was in a dilapidated condition and would be likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or persons passing by and in consequence the removal of the structure was necessary. they do not show by evidence that the existence of the house in that condition was a nuisance and thereby would cause injury to the persons who are living therein, or carrying on business in the neighbourhood or passing by. but unless there was such a case for interference the magistrate had no authority to issue the order in question or enforce it. it cannot be inferred from the mere order of the subdivisional magistrate that all the conditions of his jurisdiction have been satisfied. when- a statute directs anything to be done in a particular way, that includes in itself a negative namely that it shall not be done otherwise. the order made by the subdivisional magistrate, therefore, does not satisfy the requisite conditions.3. i, therefore, allow this petition, reverse the order in question and remit the case back to the subdivisional magistrate to dispose of the same in accordance with law, after recording evidence.