VARKEY VARUGHESE Vs. LORD KRISHNA BANK

JUDGEMENT

(1.) THE civil revision petition arises in execution of a decree for money. THE decree holder sought to execute for the entire amount as per the decree alleging that the judgment debtors who were entitled to the benefits of the Kerala Agriculturists' Debt Relief Act, Act 11 of 1970, committed default of three consecutive instalments and praying for the arrest and detention of the first judgment debtor in civil prison in the first instance. THE judgment debtors filed an application E A. No. 568 (a) of 1974 in the matter under S. 7 and 8 of Act 11 of 1970 for ascertaining the correct amount due. It was alleged in the application that by the payments already made, the entire debt has been wiped off and there has been excess payment.

(2.) THE application was opposed on a preliminary point by the decree holder contending that in E. P. No. 31 of 1971 and subsequently, there has been an adjudication and ascertainment of the amount due as per the decree. In the said execution petition the decree holder had shown the total amount due from the judgment debtors as Rs. 3455. 83 and claimed 1/8th of the amount with interest thereon as the first instalment after deducting a sum of rs. 25/- paid on 15-1-197 1. THE court after hearing the judgment debtors's objection to this ordered that only 1/12th of the total amount was recoverable as the first instalment. In accordance with this direction, the decree holder's counsel filed a statement in court which reads: Table:1 THE judgment debtors paid this amount and the E. P. was dismissed, on 18-1-1972.

(3.) I might at the outset point out that though a ground has been taken in the revision memo and faintly argued before me that the court below erred in ordering arrest of the judgment debtors allegedly without complying with the provisions of S. 51 of the Code of Civil Procedure, not much was stressed on this aspect quite rightly by Mr. Balasubramanyan the learned counsel for the petitioners in view of the tact that in the earlier proceedings there had been due enquiry and finding about the means of the judgment debtors. I might here point out that in Kadru Kunhu Abdul Karim v. Narayana Pillai raghavan Pillai 1971 KLT. 448, this court had said that when it is once shown in execution that the judgment-debtor has means to pay and has refused or neglected to pay the same, it would debar an adjudication on a subsequent occasion whether the judgment-debtor has had means to pay the decree amount since the date of the decree and he has refused or neglected to pay the same. If on the earlier occasion the court finds that since the date of decree judgment-debtor has had means and has refused or neglected that again would be an adjudication which would debar a fresh adjudication on the question on a subsequent occasion. There Justice Poti followed the dictum of Justice Raman nayar in Ulahannan Job v. Prudential Trust 1964 KLT. 1101 where the learned judge says: "that this argument forgets the clause 'or has had since the date of the decree' appearing in clause (b) of the proviso to S. 51 of the Code. The prior order for arrest amounted to a finding that the judgment-debtor had or has had since the date of the decree, the means to pay; and, that being so. the position remains, since the judgment-debtor is bound by that finding, that he has had since the date of the decree, the means to pay. " This court differed from the view taken by Mr. Justice panchapakesa Aiyar in Venkatasubba Rao v. Sreeramulu (AIR 1949 Madras 470)where it was said that 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, reasons must be given, for cases differ and much depends on lapse of time also. In the circumstances no point could be made out on the basis of the alleged non-compliance with S. 51 CPC.