ORDER
1. It is contended an behalf of the revision petitioner/second defendant judgment-debtor, referring to the decision in Jolly George- Verghese v. Bank of Cochin, : [1980]2SCR913 , which has been followed by this Court in the decision rendered by Balasubrabmanyan, J. in Anuma Gounder v. Pormusami, : AIR1982Mad81 and bearing in mind ft observation of the Supreme Court as well as the decision arrived at by this Court, when the grievance of the revision petitioner is dealt with, certainly it would be seen that the order now impugned is revisable under Sec. 115, C. P. C. It is further contended that the order pronounced by the lower Court on 25-1-1982 in R.E.P. 195 of 1981 in 0. S. 201 of 1981, on the file of the learned- District Munsif, Mettur Dam, the petition filed by the respondent herein plaintiff-decree-holder under 0. 21, Rules 11 and 32 and 38 of the Civil P. C., for arrest of the revision petitioner herein for recovery of Rs. 3,876-40 being the decree amount and costs, is certainly revisable, because, on the day of hearing of the said petition, the revision petitioner herein went late to the Court and the said belated appearance of the revision petitioner hereinbefore the lower Court was neither wanton nor willful. In this regard, the learned counsel for the visional petitioner would also point out the following endorsement incorporated in the docket of the petition, R. E. P. 195 of 1981, on 14-10-1981, as well as on 31-10-1991.
(14-10-1981: - Further proceedings stayed. Application ordered in 1. A. 362 of 1981 in A. S. 184 of 1981 of District Court, Salem. Conditional order passed. Stay till 23-101981 (on 23-10-1981) the Presiding Officer was on leave and re posted to 31-10-1981).
31-10-1981 :- Conditional order passed L R. 2 served. Mr. K. M. N. for respondents. Counter and payment of Rs.400/- by 5-12-1981.'
It is contended by learned counsel for the revision petition' that whom an appeal has been preferred to the District Court and that the same had been pending and when an order of stay of execution was also obtained, it is not quite in accordance with the law that the learned District Munsif had ordered arrest of the, revision petitioner herein by 22-2-1982, observing that there was no counter filled and that no payment was made as per the order of the learned District Munsif dated 31-10-1981, especially when the revision petitioner herein was not present at the time when the petition was called. To substantiate their contention, the learned counsel for the revision petitioner would point out the contents of the counter filed by the revision petition' on the very same date of the impugned order It is pointed out by the learned counsel for the revision petitioner that the, counter was ready to be Med even o4 25-1-19&2, viz., the date of adjournment of the petition for counter and it was filed in the office of the learned District Munsif, who had delivered the order for arrest on the very same day. In this view, the order becomes revisable, is the submission made by the learned counsel for the revision petitioner herein.
2. On the other hand, the learned counsel for the respondent herein would vehemently contend that the respondent herein filed R. E. P. 195 of 1981 under O. 21, Rr. 11 and 32 and 38 with the said O, 21 and in this regard when the provisions of O.21, R. 37 as well as O. 21, R. 40, Civil P. C. are gone through, it will be clear that even after arrest, there would be sufficient opportunity to the revision petitioner herein to put forth his case and as such, the impugned order cannot be revised under the provisions of S. 115, Civil P. C. The point for consideration is: Whether the order of the learned District Munsif dated 25-1-1982 in R. E. P. No. 195 of 1981 in 0. S. 201 of 1981 is revisable under S. 115. Civil P. C.?
3. It admits of no doubt that the revision petitioner herein was not present in Court on the date on which the order was pronounced viz., 25-1-1982. On that day, the revision petitioner herein had been given an opportunity to file the counter to the said petition, R. E. P. 195 of 1981. He was also directed to pay Rs. 400/- by 5-12-1981 on 31-10-1981, and there was extension of time for the said purpose on several dates subsequently. Finally on 23-1-1982, it was ordered by the learned District Munsif that the counter and payment of Rs. 400/- had to be made on 25-1-1982. when the revision petitioner was not present in Court. The order under revision had been pronounced by the lower Court, which runs as follows-
'No counter. No payment. Respondent called absent. Set ex parte. Means proved by affidavit. Arrest by 22-2-1982 6atta in 3 days.'
The learned counsel for the respondent herein would contend that O. 21, Rule 37, C. P. C. provides as follows
'(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 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 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 shell, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.' As such, the impugned order is not available. He would also point out the, provisions of 0. 21, R. 40 which runs as follows -
(1) When a judgment-debtor appears before the Court in obedience, to notice issued under Rule 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 inquiry 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 inquiry 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 the event cause him to be arrested if he is not a1ready under arrest.
Provided that, in order to give the-judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the, judgment debtor in the custody of an officer of the Court for a specified. period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not -sooner satisfied.
(4) A judgment-debtor released under this rule may he- re-arrested,
(5) When the Court does not make an order of - detention under sub-rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release,'
On the other hand, the learned counsel for the revision petitioner would contend that it is no doubt that Rs. 400/- which was directed to be paid to the respondent herein by the lower Court as per its order date 25-1-1982, yet it is not as if that the same would afford' a sufficient ground for arrest especially in view of the observations made by the Supreme Court in Jolly George Varglicse v. Bank of Cochin, : [1980]2SCR913 the other hand, the learned counsel for the respondent would submit that the circumstances, which were prevailing when the order of arrest was made by the lower Court are different and distinguishable. The only question that confronts this Court is, whether the 'absence of the revision petitioner at the time when the petition was called on 25-1-1982, would justify a pronouncement of the order of arrest. Even at the outset it is to be stated that the order of arrest made under the circumstances is not quite in accordance with law. The direction for arrest is an extreme consequence that can be resorted to if, there is adequate proof of refusal to comply with a decree in spite of the fact that the judgment debtor is possessed of sufficient means to satisfy the same. Unless this aspect is adverted to, certainly an order of arrest cannot be made.
In this view, when a counter had been filed on the very same date of the order under revision was pronounced by the lower Court would justify that though the revision petitioner herein was not present at the time when he was called in Court though he was represented by a counsel before the said Court yet, the lower Court could have just passed over for any representation to be made out behalf of the learned counsel appearing for the judgment debtor revision petitioner herein on that day and there after after hearing the representation made by the learned counsel he could have made an order, which, of course, would at least justify the basic principle of representation viz audi alteram partem. Though in the preamble portion it is, stated that the counsel set for the revision petitioner herein was represented, yet no representation was, said to have been made by him is incorporated in the order in question, nor is it seen that the learned counsel for the revision. Petitioner herein was not present at the time when the petition was called. Under these circumstances, the date seat found on the counter filed by the revision petitioner herein in R. E, P. 195 of 1981, before the lower Court alone comes to our Perusal only to the limited scope of seeing the date of the filing of the said counter especially when it is incorporated in the order under revision that there was no counter filed. The counter might not have been filed as and when the order was pronounced but, the date seal on the counter, which bears the date 25-1-1982 together with S. No. 315, clearly shows that the counter had been filed. Therefore, the order under revision becomes revisable and is hereby revised. The civil revision petition is allowed, the learned District Munsif, Mettur Dam is directed to restore the petition R. E. P. 195 of 1981 on his file and dispose of formally after taking into consideration the various contentions raised in the counter filed by the, revision petitioner herein as 25-1-1982, Under the circumstances, there is no order as to costs.
4. Revision allowed.