R.V.J Sastry And Ano... v. Bank Of India, Reptd...

The Judgment of the Court was delivered by

Lakshmaiah, J.:— This appeal by the judgment-debtor is directed against the order and decree passed in E.P No. 15 of 1975 on the file of the Principal Subordinate Judge, Visakhapatnam, dt. 12-7-1976.

2. Bank of India, Visakhapatnam, represented by its duly constituted attorney, the first respondent herein tiled an execution petition seeking the execution of a money decree against the appellant requesting the court below to arrest the appellant and send him to civil prison alter notice for realisation of the B.P amount in a sum of Rs. 21,291-63 ps. That petition was ordered which is now appealed against. That order reads thus:

“Balance not paid. Adjournment petition dismissed. Judgment-debtor have means to pay as per affidavit. Arrest judgment-debtors 1, 2 and 4 by 3-8-1976”.

3. The learned counsel for the appellant contended that the above decision of the court below directing the arrest of the judgment-debtors is not in conformity with the mandatory provisions of procedural law whereas the learned counsel for the respondents contended that the decision was quite legal, proper and valid. The point therefore that arises for consideration is whether the order directing the arrest of the judgment-debtors in execution of the money-decree merely on the ground that they have means to pay the decretal amount, is valid in law.

4. A consideration of the above needs reference to the applicable provisions of law contained in Sec. 51 of the Code of Civil Procedure and the provisions in Order XXI, particularly Rule 37 thereof.

5. Sec 51 of the Code of Civil Procedure deals with the powers of he court to enforce execution of a decree by arrest and detention and reads, in so far as it material, thus:

“Subject to such conditions and limitations as may be prescribed, the court may, on the application of the deuce-holder, order execution of the decree————

(a) ………………………

(b) ………………………

(c) by arrest and detention in prison for such period not exceeding the period specified in Sec. 58, where arrest and detention is permissible under that section.

(d) ………………………

(e) ………………………

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 reasons recorded in writing, is satisfied———

(a) ………………………

(b) that the judgment-debtor was, or has bad since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same”.

6. The expression ‘prescribed’ occurring in the above Section is defined by subsection (16) of Section 2 C.P.C to mean ‘prescribed by rules’.

7. Rule 37 of Order XXI is one such prescribed rule and in so far as it is material, omitting the proviso, reads thus:

“(1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by 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 for his arrest, issue a notice calling upon him to appear before the court on a day to be specified and show cause why he should not be committed to the civil prison;

(2) Where appearance is not made in obedience to the notice, the court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor”.

8. What is therefore manifest from the foregoing provisions of law is—

“(1) The court has power conferred upon it under section 51 of the code to order the execution of a decree for the payment of money by arrest and detention of the judgment-debtor in prison on the application of a decree holder;

(2) The condition precedent for the exercise of that power is that it should be prescribed by the court's affording an opportunity to the judgment-debtor of showing cause as to why he should not be committed to civil prison;

(3) The court should be satisfied, for reasons to be recorded in writing 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 that the judgment-debtor has refused or neglected to pay the same;

(4) the court shall, instead of issuing a warrant for the arrest of the judgment-debtor, shall have to issue notice calling upon the judgment-debtor to appear before the court and show cause why he should not be committed to the civil prison;

(5) Where no such appearance is made in obedience to the notice and it the decree-holder so requires, it is rendered obligatory on the part of the court to issue a warrant for the arrest of the judgment-debtor”.

9. It is thus clear that Section 51 of the Code of Civil Procedure reads with the conditions and limitations prescribed by the Rules particularly through Rule 37 of Order XXI, are, procedural, though they be in nature and charier, are nevertheless, conceived in the interests of the protection of liberty and freedom of the judgment-debtor which the Code considers to be of paramount importance. Any provision of law pertaining to the protection of such liberty and freedom of a citizen are to be construed is mandatory, the violation of which, invariably results in vitiating the consequential order.

10. We shall have to consider then the correctness or otherwise of the impugned decision in the context of the aforesaid propositional position of law.

11. The decision impugned is a cryptic one. It says that the judgment debtors have means to pay. The requirement of law as regards means of the judgment-debtor to pay the decretal amount is to be ascertained having regard to the point of time obtaining only subsequent to the passing of the decree which is sought to be put in execution. The lower court did not apply its mind to this aspect of the matter as the impugned decision discloses. Moreover, it is not sufficient if the court is merely satisfied that the judgment-debtor has the means to pay the decretal amount. It must be further satisfied that the judgment-debtor, having the means to pay, refused or neglected to pay. The lower court did not advert to this aspect even. From the omission to record its reasons for its satisfaction, it must be consumed that the court ignored the material and mandatory requirements of law. Even in a case where the judgment-debtor does not appear in obedience to a Court's notice, the court is obligated to issue a warrant for his arrest only when the decree-holder so requires.

12. On the application filed by the decree-holder in this case, notice was issued to the judgment-debtor. The judgment-debtor filed his counter. The counsel both for the decree-holder as well as for the judgment-debtor seemed to have made a request to the court below to have the matter adjourned.

13. That request was not acceded to by the court below, and arrest of the judgment-debtor was ordered. It is therefore evident that this is not a case of the decree-holder's requiring the court to issue a warrant for the arrest of the judgment-debtor under sub-rule (2) of Rule 37 of Order XXI of the Code of Civil Procedure. The court did not apply its mind to the aforesaid relevant material applicable to mandatory provisions of law.

14. We are therefore of the opinion that the impugned decision directing the arrest of the judgment-debtors is violative both of the letter and spirit of the aforesaid provisions of law.

15. For the aforesaid reasons, we are satisfied that the order under appeal shall have to be set aside and it is hereby accordingly set aside. The appeal is allowed but, in the circumstances, without costs. The court below is hereby directed to take on ??? the petition filed by the decree-holder and dispose it of according to law in the light of the above observations.

A.A.O No. 367 of 9976:—

16. We have been informed by the learned counsel appearing on either hide that the order appealed against in this appeal is the same as the one that was the subject matter of the appeal (A.A.O No. 1378 of 1976) which is just now dispose of. For the reasons given by us while allowing that appeal, this appeal also is allowed but, in the circumstances, without costs.

17. P.N.R

18. A.A.A allowed.