1. The petitioners are judgment-debtors. The respondent judgment-creditor obtained a decree for recovery of certain amount from he petitioners. It is not clear from the record of the case as to for how much amount the judgment-creditor has obtained decree. At one place sum of Rs. 11,070/- is written while at another place sum of Rs. 823.50 ps. is mentioned. Be that as it may, this aspect is not important for deciding the revision petition.
2. The judgment-creditor filed execution application for recovery of the amount of decree. Since the amount was not recovered, he also applied by filing application-Exh. 18 for detaining the judgment-debtors in civil prison. The petitioners judgment-debtors resisted the application and contended that there were enough immoveable properties from which the decretal dues can be recovered. The trial Court rejected the aforesaid contention and held that it was for the judgment-debtors to produce evidence to show that they were having sufficient properties. The trial Court then passed order directing the judgment-debtors to be detained in civil prison and ordered to issue warrant for detention under the relevant provisions of C.P. Code. It is against this order, the present revision application is filed by the petitioners-original judgment-debtors.
3. The trial Court has not taken into consideration the provisions of Section 51 read with Order 21 Rule 37 of C.P. Code. The trial Court has also equally ignored the settled legal position as per the decision of the Supreme Court in the case of Jolly George Varghese v. The Bank of Cochin . Section 51 deals with powers of Court to enforce execution of decree. One of the modes provided is by arrest and detention in prison for such period not exceeding the period specified in Section 58 where arrest and detention is permissible under the provisions of section 58. Other modes of enforcement of execution of decree provided for are by delivery of any property specifically decreed; by attachment and sale or by sale without attachment of any property; by appointing a receiver; or in such other manner as the nature of the relief granted may require. Proviso to Section 51 is important. The proviso enjoins duty upon the Court to afford an opportunity of being heard to the judgment debtor to show cause as to why he should not be committed to prison and the Court is also required to be satisfied on certain aspects which are mentioned in the proviso. Proviso to Section 51 reads as follows:
Provided that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reason recorded in writing, is satisfied:
(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree:
(i) is likely to abscond or leave the local limits of the jurisdiction of the Court; or
(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or
(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refused or neglects or has refused or neglected to pay the same; or
(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.
4. Order 21 Rule 37 confers power on the Court to issue warrant for detention of judgment-debtor. But before exercising this power the Court is required to afford an opportunity of being heard to the judgment debtor by issuing notice to show cause as to why he should not be committed to civil prison. The notice may be dispensed with only if the Court is satisfied, by affidavit or otherwise, that with the object 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. The aforesaid provisions of C.P. Code (Section 51 and Order 21 Rule 37) have come up for interpretation before the Supreme Court in the case of Jolly George Varghese (supra). In the context of the provisions of Article 11 of the International Covenant on Civil and Political Rights and in the background of Article 21 of the Constitution of India, the provisions of Section 51 Order 21 Rule 37 have been interpreted by the Supreme Court. Article 11 of the International Covenant on Civil and Political Rights provides that no one shall be imprisoned merely on the ground of inability to fulfill contractual obligation. Article 21 of the Constitution inter alia provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. As interpreted by the Supreme Court in the case of Smt. Maneka Gandhi v. Union of India Article 2 requires the State not to imprison any person except under law which is fair, just and reasonable in its procedural essence.
5. Therefore the provisions of Section 51 read with Order 21 Rule 37 of C.P. Code have been read down by the Supreme Court so as to be consistent with the provisions of Article 11 of the International Covenant on Civil and Political Rights and Article 21 of the Constitution of India. In para 10 of the judgment the Supreme Court has inter alia observed as under :
It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of Daridra Narayana (land or poverty) is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Article 21 unless there is willful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness.
Thereafter in para 11 of the judgment the Supreme Court has further observed:
The simple default to discharge is no enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recussant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor's other pressing needs and straitened circumstances will play prominently.
6. On going through the order passed by the trial Court below Exh. 18, filed in execution proceedings, it is evident that nowhere the trial Court has found that the judgment-debtors have sufficient means to satisfy the decree, but they were adopted recalcitrant attitude and are bent upon opposing the execution of the decree deliberately; that they are sufficiently rish to satisfy the decree fully or atleast substantial part of it and even so they are deliberately avoiding execution thereof; that they have no other pressing needs on their resources and despite there being sufficient extra means and resources with them after satisfying their pressing needs, they are adopting delaying tacties to avoid execution of decree.
7. In this view of the matter the trial Court has failed to take into consideration /the provisions of law and the settled legal position as declared by the Supreme Court. Thus the trial Court has failed to exercise the jurisdiction vested in it. Hence the impugned order passed by the trial Court is required to be quashed and set aside.
8. In the result the revision application is allowed. The impugned order passed "by the trial Court below Exh. 18 filed in execution application directing to detain the judgment debtor in civil prison is quashed and set aside. The trial Court shall proceed further with the execution application in accordance with law. Rule made absolute accordingly with no order as to costs.