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Pundlik Mahadu Nazire v. Maharashtra State Farming Corporation .
Factual and Procedural Background
The petitioner was employed as a Clerk by the respondent. The respondent alleged that during the petitioner’s tenure, he misappropriated sale proceeds amounting to Rs. 6,530.62. Consequently, the respondent filed a suit to recover this amount, which was decreed on February 26, 1980. Attempts to execute the decree by attaching the petitioner’s provident fund failed as it was legally not attachable. The petitioner subsequently authorized the respondent to withdraw from the provident fund with court permission, yet the decree remained unsatisfied. The respondent then applied to the executing Court, alleging that the petitioner was well-to-do, had means to pay, but was delaying payment. The executing Court issued a warrant for the petitioner’s arrest and detention under Order XXI, Rule 38 read with section 51 of the Code of Civil Procedure.
Legal Issues Presented
- Whether the conditions under Order 21, Rule 38 read with section 51 of the Code of Civil Procedure for issuing a warrant for arrest and detention of the petitioner were met, specifically regarding the petitioner’s means to pay and refusal or neglect to pay the decretal amount.
- Whether the executing Court properly applied its mind in issuing the warrant, including specifying the period of detention as required under sub-section (1) of section 58 of the Code of Civil Procedure.
Arguments of the Parties
Petitioner’s Arguments
- There was no evidence demonstrating that the petitioner had the means to pay the decretal amount.
- The petitioner did not act with mala fide or dishonesty in declining to pay.
- The essential conditions for invoking Order 21, Rule 38 read with section 51 were absent, rendering the impugned order legally unsustainable.
- The executing Court failed to apply its mind, notably by not specifying the period of detention as required by law.
Respondent’s Arguments
- The respondent contended that there was no error in jurisdiction or procedure in the executing Court’s order warranting interference in revision.
- It was submitted that the petitioner’s partial deposit of the decretal amount barred him from challenging the order.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jolly George Verghese v. Bank of Kochin, (1980) 2 SCC 360 : AIR 1980 SC 470 | Establishes that detention under section 51 of CPC requires proof that the judgment-debtor had means to pay after the decree date and refuses or neglects payment dishonestly. | The Court relied on this precedent to emphasize that mere non-payment is insufficient; there must be a dishonest refusal and means to pay, which were not established here. |
Court's Reasoning and Analysis
The Court found the impugned order legally untenable due to two primary infirmities. First, the executing Court failed to apply its mind regarding the petitioner’s means to pay and refusal to pay as mandated by the proviso to section 51 of the Code of Civil Procedure. The respondent’s allegation that the petitioner was a tenant in possession of land was unsupported by evidence of income or means derived therefrom. The Court noted that the petitioner’s provident fund was the only known asset, and no proof showed dishonest refusal to pay. The Court cited the Jolly George Verghese precedent, underscoring that detention is impermissible absent proof of dishonest refusal despite means to pay.
Second, the order lacked specification of the period of detention, violating the proviso to sub-section (1) of section 58 of the Code of Civil Procedure, which limits detention to a maximum of three months when the decretal amount exceeds Rs. 1,000. The absence of a defined detention period rendered the order illegal and indefinite.
The Court rejected the respondent’s submission that the petitioner’s partial payment barred revision, holding that statutory safeguards under section 51 preserve the petitioner’s right to legal remedy.
Holding and Implications
The revision application is allowed and the impugned order issuing warrant for arrest and detention is set aside.
The direct consequence is that the petitioner will not be subjected to arrest or detention under the challenged order. The decision does not establish any new legal precedent but reinforces the strict requirements under section 51 of the Code of Civil Procedure for ordering detention in execution proceedings, emphasizing the necessity of evidence of means to pay and dishonest refusal, as well as adherence to procedural safeguards including specifying detention period.
1. The revision application is directed against the order issuing warrant for arrest and detention of the petitioner under Order XXI, Rule 38 read with section 51 of Code of Civil Procedure.
2. The petitioner was working with the respondent as a Clerk and it was the case of the respondent that during his tenure of service he has misappropriated certain amount being the sale proceeds to a sum of Rs. 6,530.62 ps. The plaintiff-respondent therefore, filed a suit to recover the said amount from the petitioner. The said suit was decreed on February 26, 1980. The respondent, thereafter, tried to execute the decree by attaching the petitioner's provident fund. The amount could not be legally attached and, therefore, there was no realisation of the decree. Thereafter, it appears that the petitioner gave his consent and authorised the respondent to withdraw the amount from his provident fund with the leave of the Court. The decree was, however, not satisfied. The respondent then applied to the executing Court inter alia alleging that the petitioner is a well to do person and has got means to pay but has been adopting delaying tactics and wants to prolong the matter and, therefore, he should be arrested and detained in the civil prison.
3. That application of the respondent (Ex. 35) has been granted with a cryptic impugned order which reads as follows:
“ Heard advocate Shri Muley on behalf of D.H Perused the testimony of the parties. Advocate for J.D not present. Perused the VII and XII extract filed herewith along with list (Ex. 37). So also the certificate of concerned Sarpanch not challenged. It appears that J.D tenant in possession of S. No. 113/1 Anchalgaon. It appears that J.D has means to pay the decretal dues. Hence, issue warrant against J.D under Order 21, Rule 38, Civil Procedure Code (section 51, Civil Procedure Code) D.H shall deposit the subsistence allowance, as per the prevailing rule, within 8 days.”
4. Shri Navandar, the learned counsel for the petitioner, in the first place, urged that there is absolutely no evidence to show that the petitioner has any means to pay and that he has mala fide or dishonestly declined to pay. Therefore, the essential conditions to invoke provision of Order 21, Rule 38 read with section 51, Civil Procedure Code were wanting and in consequence the impugned order is bad in law. Secondly it has been urged that there is non-application of mind by the Court below in ordering arrest and detention of the petitioner, inasmuch as there has been no period of detention in the order as required by law and, therefore, the impugned order is also liable to be quashed and set aside for want of proper exercise of jurisdiction by the Court below.
5. Shri Dabir, the learned counsel for the respondent has no doubt submitted that there is neither error relating to jurisdiction nor procedure followed by the Court below so as to interfere with the impugned order in revision.
6. In my opinion, the impugned order cannot stand in law as it suffers from serious infirmities. The first infirmity is the non-application of mind by the Court to the facts and circumstances of the case. The proviso to section 51 so far it is relevant here lays down that where the decree is for payment of money, execution by detention in prison shall not be ordered unless the Court is satisfied that the judgment-debtor, has or has had since the date of the decree the means to pay the amount of decree or some substantial part thereof and refuses or neglects or has referred or neglected to pay the same. The respondent has alleged in the application (Ex. 35) that the petitioner is a tenant in respect of the land at Achalgaon because his name appears in the record of rights of the year 1982. There is, however, absolutely no material to show that except the provident fund which he had, the petitioner has or has had any means to pay. There is also no evidence to show that he derives any income from the said land. In the circumstances, it is not possible to infer that the petitioner either refuses or has refused or neglected to pay the decretal amount. In case of Jolly George Verghese v. Bank of Kochin, (1980) 2 SCC 360 : AIR 1980 SC 470, it has been laid down that when the judgment-debtor if once had the means to pay the debt but subsequently after the date of decree, has no such means or he has money on which there are other pressing claims, and no dishonesty or bad faith intervenes, the judgment-debtor cannot be confined in jail for non-fulfilment of his decretal obligation by coercive method which is violative of Article 21 of the Constitution of India. The proviso to section 51 emphasizes the need to establish not mere omission to pay but an attitude of refusal on demand intervening dishonest disowning of the obligation under the decree. The learned Judge of the executing Court, therefore, has failed to satisfy aforesaid requirement before passing the impugned order.
7. There is another infirmity in the order. Proviso to sub-section (1) of section 58 of Code of Civil Procedure lays down that every person detained in the civil prison shall be so detained when the decree is for the payment of sum of money exceeding Rs. 1,000/- for the period of not exceeding three months. In the instant case no period is mentioned in the impugned order, even though the decretal amount exceeds Rs. 1,000/-. That means the order of detention is for indefinite period. This is obviously material illegality in exercising the jurisdiction by the Court below.
8. The impugned order which suffers from basic infirmities as aforesaid will have to be quashed and set aside.
9. Shri Dabir, the learned counsel for the respondent no doubt invited my attention to the previous order passed by this Court, directing the petitioner to deposit the decretal amount and the petitioner in compliance with that direction has deposited a sum of Rs. 5,500/- and has sought for further time to deposit the balance. It has, therefore, been submitted that the petitioner is prevented from challenging the impugned order. This submission of the learned counsel for the respondent is devoid of any merit. Keeping in view the essential safeguard provided under section 51 of Code of Civil Procedure merely because the petitioner has deposited aforesaid amount that by itself is no ground to deny him the legal remedy.
10. The result is that the revision application is allowed. The impugned order is set aside. Rule is made absolute with costs.
Revision application allowed.
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