Where application was filed under CPC, Order XXI ,Rules 10 and 11, for
issuance of notice under Rule 37 and then warrant under Rule 38. The Court after
hearing the counsel for parties had issued warrent under Rule 38.
Held that as it was not order under Rule 40, hence it was order under under Rule
38 without conduct of enquiry under Rule 40 ,as such it was not under Rule 38
and was not without jurisdiction.
The impugned order had been passed under Rule 38,the question regarding the
means to pay and other opportunities to adduce evidence by both parties before
the Court ,would arise only when the final order was passed under order XXI,
Rule 40 , CPC, after the petitioner was arrested and brought before the Court.
Therefore, the petitioner were liable to be arrested and brought before the
Court to enable the court to take further course of action for recovering the