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citation codes

Case Number

Ex Second Appeal No. 155-D/1961, D/- 19-4-1967, from order of Addl. Dist. J. Delhi, D/- 17-7-1961.

Judges

M.M Ismail, J.

Acts

provisions contained in Section 51 of the CPC and Order 21, Rules 37-40 of the CPC.
provisions contained in Order 17, Rule 1 and Order 21, Rule 57 of the CPC
Section 34 of Act VII of 1934 (Punjab Relief of Indebtedness Act)
provisions of section 51 of the Code,
Order 21. Rule 11 of the CPC.(2)
Order 21, Rule 57
Order 17, Rule 1

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The decree-holder, Smt. Brahmo Devi, obtained a decree on 21-4-1955 for Rs. 3,800 against her adopted son, Shri Gopi Nath (the appellant). She applied for execution the same year. On 21-1-1956 an order for the arrest and detention of the judgment-debtor was passed; the judgment-debtor's appeal against that order was dismissed on 20-12-1956. The judgment-debtor then applied under Section 34 of Act VII of 1934 (Punjab Relief of Indebtedness Act), as extended to Delhi, seeking dismissal of the decree-holder's application for his arrest; that application was dismissed by a Subordinate Judge on 8-2-1958. On appeal a compromise was recorded by the Additional District Judge on 2-6-1958 (installment payments of the balance with a fall-back right of arrest if the appellant defaulted).

The appellant defaulted on the compromise payments. Execution proceedings were transferred and multiple warrants of arrest were issued (dates: 5-9-1959, 6-2-1960) but the appellant could not be found. On 2-4-1960 the execution application was consigned to the record room. The decree-holder sought revival on 4-5-1960 and further warrants were issued; the appellant applied for recall of those warrants. A Sub-Judge overruled the objections and directed issue of a warrant for 24-9-1960 (order dated 17-8-1960). The appellant appealed (Misc. Civil Appeal No. 136-A of 1960) to the Additional District Judge, who dismissed the appeal on 17-7-1961. The appellant then filed the present second appeal to this Court.

Legal Issues Presented

Whether the order consigning the execution application to the record room on 2-4-1960 (because the decree-holder defaulted in payment of process-fee) amounted to a dismissal of the execution application such that no further proceedings could be taken without a fresh application under Order 21, Rule 11 of the CPC?
Whether a subsequent order for arrest and detention in civil prison could be made without giving the judgment-debtor an opportunity to show cause and without fresh reasons being recorded as required by Section 51 of the CPC (and Orders 21, Rules 37–40), where a prior order for arrest had been passed but not given effect to and a substantial interval had elapsed?

Arguments of the Parties

Appellant's Arguments

The consigning of the execution application to the record room on 2-4-1960 (because the decree-holder failed to pay process fees) operated as a dismissal of the decree-holder's execution application; consequently, further proceedings required a fresh application under Order 21, Rule 11 CPC.
Because no arrest or detention had been made pursuant to the original order of 21-1-1956, the subsequent order for arrest and detention could not be made without giving the judgment-debtor an opportunity to show cause. In other words, Section 51 CPC and the procedural safeguards in Order 21 (Rules 37–40) require fresh enquiry and reasons each time an order for arrest/detention is sought after a significant lapse of time.

The opinion does not contain a detailed, separate account of the decree-holder's (respondent's) specific arguments before this Court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Vijendra Nath v. Jagdish Rai Aggarwal, AIR 1967 SC 600	Where an application is consigned to the record room, a subsequent application for execution may be regarded as reviving the original substantive execution application.	The Court relied on this Supreme Court decision to conclude that the execution application consigned to the record room on 2-4-1960 was not finally dismissed and that subsequent revival steps were properly treated as a continuation of the original execution proceedings. This supported rejection of the appellant's first contention.
V.K. Murugappa Mudaliar v. P.M. Desappa Nayanim Varu, AIR 1950 Mad 314	Held that an execution petition was not dismissed for the default of the decree-holder and that attachment could continue, especially where the Judge directed continuation until the decree was satisfied.	The Court held that this decision did not support the appellant's contention that consigning to the record room amounted to dismissal; it illustrates that non-prosecution orders do not necessarily terminate execution proceedings.
H. Kunjan Marakkaru Metharu v. Joseph Achamma, AIR 1956 Trav.-Co. 122	Explained that orders such as "dismissed", "rejected" or "struck off" passed for statistical or non-judicial reasons operate as adjournment sine die and execution petitions so disposed are to be deemed pending and capable of revival.	The Court relied on this principle to show that consigning to the record room need not be treated as a final dismissal; the decision did not aid the appellant's argument that a fresh application was required.
K. Venkatasubba Rao v. M. Sreeramulu, AIR 1949 Mad 470	This Madras decision stated that reasons for arrest must be given every time a man is ordered to be arrested, even if a previous order exists and even on the same day, because circumstances may change with lapse of time.	The Court considered and quoted this observation approvingly as to the underlying principle; it accepted that if a sufficiently long interval has elapsed between the original arrest order (not acted upon) and a subsequent attempt to obtain arrest, the Court must give the judgment-debtor an opportunity and be satisfied with fresh reasons under Section 51 before issuing a new arrest order. The case influenced the Court's conclusion on the second issue.
M.V.P. Paramanandaswami v. A.K. Shanmugham Pillai, AIR 1949 Mad 822	One of several Madras decisions addressing the necessity for compliance with Section 51 CPC before ordering arrest and detention of a judgment-debtor in money decrees.	The Court recorded that this and other Madras decisions generally emphasise compliance with Section 51; they were considered collectively as authority for the proposition that the safeguards of Section 51 are necessary before detention orders are made. The Court applied the general principle that compliance is required and tailored it to the facts (requiring fresh enquiry where a substantial interval exists).
S.K. Kuttalalingam Pillai v. S.V.N. Chinnakannu Pillai, AIR 1952 Mad 18	Another Madras case highlighting the necessity to comply with Section 51 CPC requirements before committing a judgment-debtor to civil prison.	The Court treated this among the decisions supporting the proposition that procedural safeguards in Section 51 must be respected; it informed the Court's view that fresh inquiry is required after a long lapse.
K.V. Muthu Pathar v. R.S. Mani Rao, AIR 1956 Mad 580	A Madras decision dealing with compliance with Section 51 CPC prior to ordering arrest/detention in civil prison.	Included in the group of Madras authorities confirming the necessity of compliance with the Code's safeguards; these cases collectively influenced the Court to require a new opportunity and reasons where a significant time had passed.

Court's Reasoning and Analysis

The Court addressed the appellant's two principal contentions sequentially.

On the first contention (consignment to record room = dismissal):

The Court examined the order of 2-4-1960 consigning the execution application to the record room and the reasoning of the subordinate Courts below. The Subordinate Judge had expressly stated that the proceedings were adjourned sine die, that previous proceedings were reserved, and that the application was not finally disposed of. The Additional District Judge concurred.
The Court considered the relevant procedural provisions cited by the appellant (Order 17, Rule 1 and Order 21, Rule 57 CPC) and the case law relied upon. It observed that Order 17, Rule 1 concerns the Court's power to adjourn and that consigning to the record room without a specific adjourned date does not necessarily mean dismissal.
Order 21, Rule 57 permits dismissal of execution applications where the decree-holder's default prevents continuation, but it also expressly gives the Court discretion to adjourn the proceedings for sufficient reasons. Thus, default does not automatically equate to a final dismissal.
The Court relied on Vijendra Nath v. Jagdish Rai Aggarwal (AIR 1967 SC 600), which treats a later execution application as a revival or continuation of an earlier substantive application consigned to record; applying that principle, the Court concluded that the 2-4-1960 consigning did not amount to a final dismissal and that the revival steps were properly regarded as continuation of execution proceedings. Consequently, the first contention failed.

On the second contention (need for fresh opportunity and reasons under Section 51 CPC):

The Court recorded the statutory and procedural backdrop: the original arrest/detention order dated 21-1-1956 had been appealed and the appeal disposed of on 20-12-1956; thereafter a compromise order (2-6-1958) was made which modified execution, and subsequent default occurred leading to fresh attempts at arrest beginning in 1959–1960. The revival application was filed on 4-5-1960 — a material lapse of time since the original order.
The appellant argued that strict compliance with Section 51 CPC (and the procedural rules in Order 21) is required each time an order for arrest and detention is made; that the Court must give an opportunity to show cause and record reasons in writing as to satisfaction of the matters in the proviso to Section 51 every time a new order is made.
The Court engaged with the Madras decisions cited, particularly the observation in K. Venkatasubba Rao that "reasons must be given every time a man is ordered to be arrested" because circumstances and the passage of time can change the situation. The Court endorsed the underlying protection of individual liberty embodied in Section 51 and acknowledged the strength of the Madras view.
However, the Court qualified the Madras pronouncement: it did not accept an absolute rule that an enquiry and fresh reasons are required every single time without regard to lapse of time. Rather, the Court framed a more fact-sensitive test: where there has been a sufficiently long interval between the original order (which was not acted upon) and the subsequent attempt to effect arrest, the Court must hold a fresh opportunity/enquiry and be satisfied that the conditions of the proviso to Section 51 are fulfilled at the time of the subsequent order.
Applying that test to the present facts, the Court found that there was an undeniably sufficiently long interval between the original order (21-1-1956) and the revival/application to continue execution (1960). Therefore, a fresh examination was warranted under Section 51 at the time the Court was called upon to make the subsequent order for arrest.
Accordingly, the Court concluded that the lower Courts erred in not giving the appellant the opportunity and in not reassessing the Section 51 conditions; the matter required re-hearing and fresh disposal consistent with Section 51 safeguards.

Holding and Implications

Holding: The Court allowed the second appeal and remanded the matter to the learned Sub Judge with a direction to dispose of the matter afresh in the light of the judgment. The Court further noted that the respondent remained ex parte before this Court and ordered that there be no order as to costs.

Implications:

Direct effect: The execution proceedings are to be re-examined by the Sub Judge; the Sub Judge must conduct a fresh inquiry and afford the judgment-debtor an opportunity to show cause and must be satisfied, with reasons recorded, that the conditions in the proviso to Section 51 CPC are fulfilled at the time any fresh order for arrest/detention is considered.
On procedure: The Court reaffirmed that consigning an execution application to the record room does not necessarily amount to a final dismissal; subsequent revival steps may be treated as continuation of the original execution proceedings (per Vijendra Nath v. Jagdish Rai Aggarwal). Thus, a fresh application is not always required where proceedings were consigned to record.
On safeguards for liberty: The Court endorsed the protective purpose of Section 51 and accepted the principle that safeguards must be respected; it refined the test in relation to lapse of time — if a sufficiently long interval has elapsed since an earlier unexecuted arrest order, the Court must reassess and ensure compliance with Section 51 before issuing a fresh arrest/detention order.
Precedential note: The decision applies these principles to the facts and remands for fresh disposal; the Court framed and applied a temporal/factual standard (sufficient lapse requiring fresh enquiry) rather than imposing an absolute rule of re-enquiry in every instance.

No information beyond the contents of the provided opinion has been added. Where the opinion did not set out particular details (for example, specific respondent submissions before this Court), that absence is noted in the summary above.

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Gopichand v. Smt. Brahmo Devi .

1. Smt. Brahmo Devi on 21-4-1955 obtained a decree for Rs. 3800 on account of arrears of monthly allowance against her adopted son, Shri Gopi Nath, the appellant herein. In the same year, she applied for execution of the decree. On 21-1-1956, an order for the arrest and detention of the judgment-debtor was passed and the appeal preferred by the judgment-debtor against the said order was rejected on 20-12-1956.

2. Thereafter, the judgment-debtor (the appellant herein) applied under Section 34 of Act VII of 1934 (Punjab Relief of Indebtedness Act) as extended to Delhi, praying that the decree-holder's application for arrest of the judgment-debtor might be dismissed. This application of the judgment-debtor was dismissed by a learned Subordinate Judge, I Class, Delhi, by an order dated 8-2-1958. Against this order, the judgment-debtor preferred an appeal to the Additional District Judge, Delhi, and that appeal was disposed of by an order dated 2-6-1958, based on a compromise between the decree-holder and the judgment-debtor according to which the judgment-debtor was to pay half the amount of the balance of the decree within six months, one-fourth after another six months and one-fourth in another six months and in case the judgment-debtor failed to pay as indicated above, the decree-holder would be entitled to realise the decretal amount amongst other courses by arrest of the judgment-debtor as well and the order of the executing Court regarding the arrest of the judgment-debtor stood modified to that extent.

3. Notwithstanding this compromise order, the judgment-debtor did not pay the amount in terms of that order. On 15-8-1959 the execution proceeding's were transferred before another Sub Judge and on the application of the decree-holder a warrant of arrest for 5-9-1959 was issued. Since the judgment-debtor could not be found, another warrant of arrest for 6-2-1960 was issued. Then also the judgment-debtor could not be found. By an order dated 2-4-1960, the execution application was stayed and sent to the record room. On 4-5-1960 the decree-holder filed an application for revival of the proceedings. On that basis, warrants of arrest were issued. The judgment-debtor applied for the recall of the same for several reasons. The Sub-Judge Delhi, by an order dated 17-8-1960 overruled the objections and directed the issue of warrant of arrest of the judgment-debtor for 24-9-1960. Against, this, the judgment-debtor preferred Misc. Civil Appeal No. 136-A of 1960, before the Additional District Judge Delhi. The learned Additional District Judge, by an order dated 17-7-1961 dismissed the appeal. It is against that the present second appeal has been filed before this Court.

4. The learned counsel for the appellant urged two points before me, which are as follows:

(1) On 2-4-1960, the case was consigned to the record room on account of the default of the decree-holder to pay the process-fee and consequently, it amounted to a dismissal of the application of the decree-holder and no further proceedings could be taken without there being a fresh application in terms of Order 21. Rule 11 of the CPC.

(2) No arrest or detention having been made pursuant to the order made on 21-1-1956. the subsequent order for arrest and detention could not have been made without giving an opportunity to show cause to the judgment-debtor.

5. The above two points were also raised before the Courts below. But they were rejected As far as the first point is concerned, the learned Subordinate Judge pointed out that the order passed by him on 2-4-1960 consigning the execution application to the record room was very clear and by that order, the proceedings were only adjourned sine die and the previous proceedings taken were expressly reserved in the order and the application was never finally disposed of. The learned Additional Sessions Judge agreed with this conclusion. I do not find adequate reasons to differ from the conclusion of the Courts below on this point.

6. The learned counsel for the appellant contended that the order consigning the proceedings to record room may mean either postponement or dismissal depending upon the circumstances in which the order was passed and in this case since the order was passed on account of default on the part of the decree-holder to pay the process fee, it must be inferred that the order consigning the proceedings to the record room amounted to the dismissal of the application. In this context, the learned counsel invited my attention to the provisions contained in Order 17, Rule 1 and Order 21, Rule 57 of the CPC and the decisions in V.K Murugappa Mudaliar v. P.M Desappa Nayanim Varu, AIR 1950 Mad 314 and in H. Kunjan Marakkaru Metharu v. Joseph Achamma, AIR 1956 Trav.-Co. 122. I am of the view that none of these provisions of law and the decisions support the learned counsel's contention. Order 17, Rule 1 deals with the power of the Court to adjourn a case and the fact that the application in the present case has not been adjourned to a specific date cannot and does not mean that the application was dismissed.

7. Equally, Order 21, Rule 57 merely states that where any property has been attached in execution of a decree but by reason of the decree-hloder's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Apart from not helping the appellant's contention this provision on the other hand, shows that even when there is default on the part of the decree-holder, the Court has discretion to adjourn the proceedings to a future date. Similarly the two decisions relied upon by the learned counsel also do not help him. In the Madras case, it was held that there was no dismissal of the execution petition for the default of the decree-holder, the attachment would continue especially when the Judge himself directed that it should continue till the decree is fully satisfied. Similarly in the Travancore Cochin case, it was pointed out that the effect of orders such as “dismissed”, “rejected” and “struck off” passed for purposes of statistics, and not by reason of the decree-holder's default or of the judicial disposal of the execution petition is merely to adjourn the execution petition ‘sine die’ and an execution petition so dismissed, rejected or struck off has to be deemed as pending even after the order and capable of being revived or continued by the decree-holder at a later stage. Therefore, I am of the view that the two decisions relied upon by the learned counsel for the appellant do not support his contention.

8. On the other hand, in Vijendra Nath v. Jagdish Rai Aggarwal, AIR 1967 SC 600 the Supreme Court had occasion to consider an order like the present one where an application was consigned to the record room. Subsequently another application was filed for execution of the decree. The Supreme Court held that the object of the subsequent application was to revive the previous substantive application for execution which was still pending and the subsequent application must be regarded as a continuation of the execution proceedings originally commenced. Under these circumstances, I am of the opinion that there is no substance in this contention of the learned counsel for the appellant.

9. As far as the second point is concerned, the learned counsel for the appellant invited by attention to the provisions contained in Section 51 of the CPC and Order 21, Rules 37-40 of the CPC. It has to be noted in this context that the original order for the arrest and detention of the appellant was passed on 21-1-1956. The application for resumption or revival of those proceedings was made on 4-5-1960. The original order dated 21-1-1956 was appealed against and the appeal was disposed of on 20-12-1956. As pointed out already, subsequently there was an order based upon a compromise between the parties on 2-6-1958. Only when the appellant failed to carry out the terms of this compromise order the decree-holder took fresh steps for arrest and detention in the Civil prison, of the appellant.

10. The contention of the learned counsel for the appellant is that an order for arrest and detention in Civil prison of the judgment-debtor in a money decree, can be passed by a Court, only in strict compliance with the provisions contained in S. 51 of the CPC and the requirements as to the opportunity contemplated to be given to the judgment-debtor as to why he should not be detained in Civil prison and the reasons to be recorded in writing by the Court as to its satisfaction with regard to the several matters mentioned in the proviso to Section 51 have to be fulfilled every time an order for arrest and detention in Civil prison is made. In support of his contention, the learned counsel for the appellant relied upon four decisions of the Madras High Court, namely K. Venkatasubba Rao v. M. Sreeramulu, AIR 1949 Mad 470 : M.V.P Paramanandaswami v. A.K Shanmugham Pillai, AIR 1949 Mad 822; S.K Kuttalalingam Pillai v. S.V.N Chinnakannu Pillai, AIR 1952 Mad 18 and K.V Muthu Pathar v. R.S Mani Rao, AIR 1956 Mad 580. The last three decisions deal generally with the necessity for compliance with the requirements of section 51 of the cpc, before a Court can pass an order for arrest and detention in Civil prison of a judgment-debtor in money decrees and only the first of the four decisions referred to above has some bearing on the question that falls for decision in this case. In the first of the cases referred to, it was observed as follows:

“It was urged by the learned counsel for the respondent that this judgment-debtor was on a former occasion, ordered to be arrested and that full reasons were then given for his arrest and that the lower Court had omitted to give the reasons now because of that. That order for arrest was not taken advantage of or carried out This is a fresh application made months later. My view is that reasons must be given every time a man is ordered to be arrested and in every proceeding where he is ordered to be arrested, even if it is on the same day; for, cases differ and much depends on lapse of time also.”

11. The learned counsel for the appellant naturally placed very strong reliance on this observation of the Madras High Court. Taking into consideration that what Is involved in such proceedings is the liberty of an individual and it is in view of this alone that the Legislature has sought to make sufficient safeguards in the provisions of section 51 of the Code, I am inclined to agree, if I may say so with respect, with the principles underlying the view taken by the Madras High Court in the decision mentioned above. One of the reasons given by the Courts below for not following this decision is that there has been no fresh execution application and necessarily there has to be some interval between enquiry and execution of the warrant and if enquiry has to be held every time, it will mean that no judgment-debtor can ever be arrested. While taking this view the Courts below failed to take into consideration the lapse of time involved in the particular case to which also a reference has been made in the observation quoted above by me from the decision of the Madras High Court referred to above If the order for arrest and detention once passed in accordance with the law is given effect to or taken advantage of by the decree-holder within a reasonable time, the difficulty pointed out by the Courts below will not arise.

12. The object of detaining a judgment-debtor in a Civil prison is not to punish him for any crime committed by him, but for enabling the decree-holder to realise the money decreed in her favour and for the purpose of achieving this object, alone, the conditions in the proviso to Section 51 have been formulated. The statute contemplates sending to prison the judgment-debtor who refuses or neglects to pay towards decree something which the Court has found after hearing him to be within his means to pay.

13. It is some contumacious conduct on the part of the judgment-debtor and not mere inability to pay that renders him liable to be arrested and committed to Civil prison. Though at a particular point of time the conditions mentioned in the proviso to section 51 of the code might have been satisfied, but if that order was not taken advantage of or not given effect to within a reasonable time, the position of the judgment-debtor may so change that the conditions mentioned in the proviso to section 51 of the code are no longer satisfied. Consequently, though I do not share the view that every time an order for arrest and detention in Civil prison of a judgment-debtor is made by a Court whether the interval between one order and a subsequent order is long or short, the Court must give an opportunity to the judgment-debtor and give reasons in writing as to the satisfaction about the fulfilment of the conditions contained in the proviso to section 51 of the code, if there had been a sufficiently long interval between the original order which has not been given effect to and a subsequent application for passing a fresh order, the Court must give an opportunity to the judgment-debtor to show cause and must be satisfied that the conditions mentioned in the proviso to Sec. 51 of the Code are fulfilled at the time when the Court is called upon to make the subsequent order. In this particular case, undeniably there has been a sufficiently long interval between the original order and the subsequent order, warranting a fresh examination of the position of the judgment-debtor with reference to the conditions mentioned in the proviso to section 51 of the code. Therefore, I allow this second appeal and remand the matter to the learned Sub Judge with a direction to dispose of the matter afresh in the light of this judgment. I may also point out here that the respondent remained ex parte before this Court. There will be no order as to costs.

14. JHS/D.V.COrder accordingly.

Gopichand v. Smt. Brahmo Devi .

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gopichand v. Smt. Brahmo Devi .

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