1. The challenge in the C.R.P. at the instance of the decree holder is to the order dated 22.10.2018 in E.P.No. 54 of 2017 in O.S.No. 274 of 2016 passed by the learned Principal Junior Civil Judge, Rajamahendravaram dismissing the petition filed by him under Order XXI, Rule 37 of the CPC seeking the Court to issue arrest warrant against the judgment debtors 3 & 4 and commit them to civil prison for realization of the amount.
2. The factual matrix of the case is thus:
The decree holder filed O.S.No. 274 of 2016 against the judgment debtors/defendants 1 to 4 for recovery of Rs. 55,520/- on the strength of a promissory note and the defendants remained ex parte and said suit was ultimately decreed in favour of the plaintiff on 20.07.2016. Thereupon the D.Hr filed E.P.No. 54 of 2017 with prayer to issue notice under Order XXI, Rule 37 of the CPC to the judgment debtors 3 & 4 to comply the decree directions and on their failure to commit them to civil prison. In the affidavit filed in support of E.P., he stated that the judgment debtors 2 to 4 are eking livelihood by doing works and getting salary of Rs. 25,000/- per month each and in spite of having sufficient means and capacity to discharge the decretal debt in one lumpsum, they intentionally avoided to do so. The docket order in aforesaid E.P., a certified copy of which is filed herewith, shows that upon receiving notice J.Drs 3 & 4 appeared in person and also through their counsel. The matter underwent several adjournments for filing their counter and ultimately on 22.06.2018 counsel for J.Drs reported no counter. Hence, the execution Court posted the matter to 17.07.2018 for appearance of J.Drs 3 & 4, but they remained absent and hence, the Court set them ex parte and posted the matter for evidence of D.Hr to prove the means of J.Drs to 10.08.2018. It appears the D.Hr requested the Court to issue arrest warrant against the J.Drs 3 & 4 in terms of Rule 37(2) of the CPC for they failed to appear in obedience to the order of the Court. However, the Court refused to issue arrest warrant on the ground that no material was produced by the D.Hr to show that the J.Drs were working and getting any income and except mere pleading of the D.Hr there was no other material on record showing that the J.Drs were having income and thus, the D.Hr failed to establish the means of the J.Drs to pay the decree debt. On those observations, the E.P. was dismissed on 22.10.2018.
3. Hence, the Civil Revision Petition. Notice in C.R.P. was directed against the judgment debtors 3 & 4, but there was no representation. Hence, heard the learned counsel for revision petitioner/D.Hr. Severely fulminating the order under revision learned counsel for the petitioner would submit that when the J.Drs 3 & 4 failed to appear before the Court on 17.07.2018, the Court, instead of setting them ex parte ought to have issued arrest warrant in terms of Order XXI, Rule 37(2) of the CPC pursuant to the request made by the D.Hr to secure their presence before the Court for conducting means enquiry under Order XXI, Rule 40 of the CPC. Learned counsel would vehemently argue that such enquiry under Rule 40 has to be conducted in the presence of the judgment debtors and an opportunity also should be accorded to them and the said object can be achieved only by securing the presence of judgment debtors by way of arrest. Instead, the Court dismissed the E.P. itself on erroneous observation that the D.Hr failed to prove the means of judgment debtors. Since the enquiry was not conducted and D.Hr has not adduced evidence, the question of D.Hr failing to prove the means of judgment debtors does not arise. He thus prayed to allow the C.R.P.
4. The arguments advanced by the learned counsel for petitioner raise an important question of law as to the procedure to be followed by the execution Court in conducting the means enquiry to resolve whether or not the judgment debtor should be committed to civil prison for committing breach of the decree passed against him. Needless to emphasise, the methodology adopted to conduct enquiry in an arrest E.P. should be flaw less because the enquiry ultimately culminate in committing the J.Dr to the portals of civil prison by extirpating his personal liberty which is one of the precious endowments after life as recognized and enshrined in Article 21 of the Constitution.
5. Commission to civil prison for breach of contractual obligation: whether amounts to infringing upon fundamental right of liberty safeguarded under Article 21 of the Constitution and violation of Article 11 of the International Covenant on Civil and Political Rights
(a) Several modes of execution are provided for different types of decrees under Section 51 of the CPC, of which, execution of money decree is one. For convenience Section 51 is extracted as under:
51. Powers of Court to enforce execution -Subject to such conditions and limitations as may be prescribed, the Court may on the application of the decree-holder, order execution of the decree—
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by the sale without attachment of any property:
(c) by arrest and detention in prison [for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section]
(d) by appointing a receiver: or
(e) in such other manner as the nature of the relief granted may require:
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) that the judgment debtor, with the object or effect of obstructing or delaying the execution of the decrce.—
(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 refuses 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.
Explanation— In the calculation of the means of the judgment debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.
b) An insight into Section 51(c) makes it clear that one of the modes of execution of money decree is by arrest and detention in prison of the judgment debtor. Having regard to the lethality of the relief, it had been impassionately argued on behalf of the judgment debtors that committing the judgment debtors to civil prison for mere infringement of a contractual obligation would amount to flagrant violation of Article 11 of the International Covenant on Civil and Political Rights (for short, ‘the ICCP Rights’) on one hand and Article 21 of the Constitution on the other, which argument was eruditely dealt with and decided by the renowned jurist V.R.Krishna Iyer in few judgments with reference to Section 51 of the CPC. In Xavier v. Canara Bank Limited, 1969 KLT 927 one of the arguments advanced against the commission of J.Dr to civil prison in execution of a money decree was that ICCP Rights are part of the law of land and have to be respected by the Municipal Courts and in that view, Article 11 of the aforesaid covenant militates and pro vides immunity from imprisonment of indigent and honest judgment debtors. Article 11 of ICCP Rights reads as under:
“No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation”
c) An attempt was made in the said judgment to find out whether Section 51 of the CPC militates against the spirit of Article 11 of the In- ternational Covenant. We will find in the proviso to Section 51 of the CPC that where the decree is for payment of money, execution by detention in prison shall not be ordered without following the conditions laid down in said proviso. Those conditions which are already extracted supra are meant to safeguard the interest of J.Drs. Therefore, the Court in an arrest E.P. shall afford a notice to the J.Dr to give an opportunity to show cause as to why he should not be committed to prison. Thereupon, recording its satisfaction that the judgment debtor with the object or effect of obstructing or delaying the execution of decree, committed certain acts, commit him to civil prison. In Xavier's case (supra), the learned Judge taking these procedural safeguards into consideration observed that Section 51 has provided certain procedural safeguards that if the debtor has no means to pay he cannot be arrested and detained; if he has and still refuses or neglects to honour his obligation or if he commits acts of bad faith, he would incur the liability to imprisonment under Section 51 of the CPC. Learned Judge held this does not violate the mandate of Article 11. It is further observed that if the judgment debtor once had the means, but now has not or if he has money now on which there are other pressing claims, it is violative of the spirit of Article 11 to arrest and confine him in jail so as to coerce him into payment. While observing, learned Judge however refused to accept the ambitious argument of counsel for J.Dr that in view of Article 11 of ICCP Rights, J.Dr shall be given total immunity from arrest. It was held that the basic human rights enshrined in the International Covenants may at best inform judicial institutions and inspire legislative action within member States; but apart from such deep reverence, remedical action at the instance of an aggrieved individual is beyond the area of judicial authority. The essence of the above observation is that Section 51 of the CPC imbibes in it the spirit of Article 11 by providing certain procedural safeguards to the judgment debtor before he is committed to civil prison for violation of a civil decree
6. Again in Jolly George Varghese v. The Bank of Cochin, (1980) 2 SCC 360 : AIR 1980 SC 470, the Apex Court (Hon'ble Judges Sri R.S. Pathak and Sri V.R. Krishna Iyer) in the backdrop of executing Court not conducting any investigation regarding the current ability of the J.Drs to clear off the debts or their mala fide refusal if any to discharge the debts, posed a question as to whether under such circumstances the personal freedom of the judgment debtors can be held in ransom until repayment of the debt, and if Section 51 r/w Order XXI, Rule 37 of the CPC is constitutional when tested on the touchstone of fair procedure under Article 21 and in conformity with the inherent dignity of the human person in the light of Article 11 of the I.C.C.P. Rights. In this context, referring to the Xavier's case (supra) the Apex Court observed as under:
“15. We concur with the Law Commission in its construction of Section 51 of the CPC. It follows that quondam affluence and current indigence without intervening dishonesty or bad faith in liquidating his liability can be consistent with Article 11 of the Covenant, because then no detention is permissible under Section 51 of the CPC.
16. Equally meaningful is the import of Article 21 of the Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Article 21, read with Arts. 14 and 19 obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhi's case, (1978) 1 SCC 248 : (AIR 1978 SC 597) as developed further in Sunil Batra (Ii); v. Delhi Administration., (1978) 4 SCC 494 : 1978 Cri LJ 1741; Sita Ram v. State of U.P., (1979) 2 SCC 656 : 1979 Cri LJ 659 and Sunil Batra (Ii); v. Delhi Administration., (1978) 4 SCC 494 : 1978 Cri LJ 1741 lays down the proposition. 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, is no crime and to ‘recover’ debts by the procedure of putting one in prison is too flagrantly violalive of Article 21 unless there is proof of the minimal fairness of his wilful 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. Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the Covenant. But this is precisely the interpretation we have put on the Proviso to Section 51 of the CPC and the lethal blow of Article 21 cannot strike down the provision, as now interpreted.”
7. Regarding the question whether Section 51, r/w Order XXI, Rule 37 of the CPC is violative of Article 21, it was observed as under:
“18. The question may squarely arise some day as to whether the Proviso to Section 51 read with Order 21, Rule 37 is in exeess of the constitutional mandate in Article 21 and bad in part. In the present case since we are remitting the matter for reconsideration, the stage has not yet arisen for us to go into the vires, that is why we are desisting from that essay.”
8. Thus, the sum and substance of above quoted judgments is that Section 51(c) of the CPC though provides for committing the judgment debtor to civil prison, still such a mode of execution is not violalive of Article 11 of the ICCP Rights for it provides procedural safeguards in the proviso of very same section. Thus, a mere non-payment of decretal amount by J.Dr will not land him in civil prison without conducting enquiry and Court satisfying that one of the conditions mentioned in the proviso is satisfied to transmit him to the civil prison. In the context of Section 51 proviso (b), it was observed in those judgments that quondam affluence and current indigence or having sufficient means at present by the J.Dr alone is not sufficient unless there is a proof of his wilful 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. Therefore, there can be no scintilla of doubt that when an execution petition on the basis of money decree is filed for arrest of judgment debtor, the Court shall afford an opportunity to judgment debtor and conduct enquiry as to whether since the decree, the judgment debtor has, or has had the means to pay the amount of the decree or some substantial part thereof and still refuses or neglects or has refused or neglected to pay the same and then pass the reasoned order.
9. The next question is whether such an enquiry has to be conducted in the presence of the judgment debtor or in absentia?
10. The procedure as governed by Order XXI, Rule 37 of the CPC and Rule 40 of the CPC which are as under:
37. Discretionary power to permit judgment-debtor to show cause against detention in prison - (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the 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 in the notice and show cause why he should not be committed to the civil prison:
[Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect 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.]
(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.
40. Proceedings on appearance of judgment-debtor in obedience to notice or after arrest”
(1) When a judgment-debtor appears before the Court in obedience to a notice issued under Rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison.
(2) Pending the conclusion of the inquiry under sub-rule (1) the Court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required.
(3) Upon the conclusion of the inquiry un- der sub-rule (1) the Court may subject to the provisions of section 51 and to the other provisions of this Code, make an order for the detention of the judgment-debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest:
Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied.
(4) A judgment-debtor released under this rule may be re-arrested.
(5) When the Court does not make an order of detention under sub-rule (3), it shall disallow me application and, if the judgment-debtor is under arrest, direct his release.
11. The scheme of the code postulating the enquiry regarding means of the judgment debtor is thus explained in Order XXI, Rule 37 and 40 of the CPC sufficiently. A decree holder who seeks execution by way of arrest and detention of the judgment debtor in civil prison shall file an affidavit in terms of Order XXI, Rule 11-A of the CPC stating the grounds on which the arrest is applied for. Thereupon, the Court will have two options under Rule 37. If the Court is satisfied by the aforesaid affidavit and came to conclusion that with the object or effect of delaying the execution of the decree the judgment debtor is likely to abscond or leave the local jurisdiction of the Court, it can issue warrant of his arrest straight away for securing his presence or otherwise the Court, instead of issuing warrant of arrest, issue a notice calling upon judgment debtor to appear before it and show cause why he should not be committed to civil prison. These are the options available to the Court. Then Rule 37(2) of the CPC envisages that pursuant to the notice, if the judgment debtor has not appeared, the Court shall, if the decree holder so requires, issue a warrant for the arrest of the judgment debtor. So, the Court can secure the presence of the judgment debtor either by way of summoning him or by issuing warrant. It should be noted that issuing warrant of arrest under Rule 37(1) or (2) is only for securing the presence of the judgment debtor so as to proceed with an enquiry under Rule 40, but not to detain him in civil prison in terms of Sections 51 and 55 of the CPC. Therefore, at the stage of Order XXI, Rule 37 of the CPC the Court need not look into the merits of the case as envisaged under proviso to Section 51. The distinction between arrest under Rule 37 and detention under Section 51(c) was well explained in (i) Suravarapu Putrayya…* v. Maddukuri Veerraju…., 1964 (2) Andhra Weekly Reporter 38 (DB) and (ii) P.G. Ranganatha Padayachi v. Mayavaram Financial Corporation Ltd. 9 : (1973) 86 LW 398 : AIR 1974 Madras 1.
12. Then Rule 40 speaks that when the judgment debtor either appears before the Court in obedience to the notice issued under Rule 37 or is brought before the Court after being arrested, the Court shall proceed to hear the decree holder and take the evidence produced by him in support of the execution petition and shall then give the judgment debtor an opportunity of showing cause why he should not be committed to civil prison. Further, pending aforesaid enquiry the Court in its discretion order the judgment debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required. On conclusion of enquiry, the Court may, subject to the provisions of Section 51, make an order for the detention of the judgment debtor in civil prison and shall, in that event, cause him to be arrested if he is not already under arrest. When the Court does not make an order of detention, it shall disallow the execution petition and if the judgment debtor is under arrest, direct his release. So, a careful analysis of the above two Rules, more particularly Rule 40, would give a clear connotation that the enquiry contemplated under Rule 40 shall be conducted in the presence of the judgment debtor. Such a mandate is understandable in the light of the fact that the enquiry sometimes may culminate in the arrest and detention of the judgment debtor in civil prison affecting his personal liberty. It gives a further understanding that ex parte enquiry in the absence of judgment debtor is uncalled for. It was so held by a learned single Judge in Kasi Subbaiah Mudali v. Kasi Vecraswamy Mudali, 2001 SCC OnLine AP 1150 : 2002 (3) ALT 240 : (AIR 2002 (NOC) 118 (AP)). In that case, the decree holder filed E.P. under Order XXI, Rule 37 of the CPC for arrest and detention of the judgment debtor. The execution Court issued notice under Rule 37(1) of the CPC to judgment debtor, but due to his non-appearance set him ex parte and posted the matter for the evidence of decree holder. He was subsequently examined and the Court basing on the record gave a finding that the judgment debtor having sufficient means to pay the decree amount still avoided to pay the same and accordingly, issued warrant of arrest for production of the judgment debtor before the Court, which order was challenged in revision. In that context, it was held as under:
“16. Admittedly, in the present case, the court has undertaken an ex parte enquiry and recorded an ex parte finding about the possession of means by the petitioner herein. The said exercise by the executing court was contrary to the express or unambiguous provisions of Order 21, particularly Rule 40. The docket orders passed by the executing court from time-to-time would indicate that it has not at all taken into account the requirement under Rule 40 of Order 21 or Section 55 of the CPC. The executing court has not followed the express provisions of Code of Civil Procedure, in passing the order under revision. The order cannot be sustained either in facts or in law. Accordingly, the same is set aside and the C.R.P. is allowed. However, there shall be no order as to costs.”
14. In the light of the above findings and presidential jurimetrics when the facts of the case on hand are perused, in the instant case also after attending Court for some time, J.Drs 3 & 4 remained absent and the execution Court set them ex parte and posted matter for evidence of decree holder to prove the means of judgment debtors. It must be said that the execution Court was totally oblivious of the procedure contemplated under Order XXI, Rule 40 of the CPC which ordains that the means enquiry must be held in the presence of the judgment debtor, It appears inspite of the decree holder requesting the Court to issue arrest warrant in terms of Rule 37(2) of the CPC the Court below instead of issuing warrant, held decree holder failed to establish the means of the judgment debtors and ultimately dismissed the E.P. which is totally an erroneous order bereft of legal mandate.
13. In the result, this Civil Revision Petition is allowed and the impugned order in E.P.No. 54 of 2017 is set aside and consequently E.P. is restored to file with a direction to the execution Court to issue warrant of arrest against judgment debtors 3 & 4 in terms of Order XXI, Rule 37 (2) of the CPC and after securing their presence, conduct enquiry in their presence in terms of Order XXI, Rule 40 of the CPC and pass an appropriate order on merits expeditiously. No order as to costs. Miscellaneous petitions, if any, pending in this Civil Revision Petition shall stand closed.
14. Petition allowed.
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