KRISHNAN Vs. METAL INDUSTRIES LTD

JUDGEMENT

(1.) In this revision arising from an order in execution, the petitioner is the judgment debtor. The petitioner was an employee of the respondent. The petitioner was in charge of the cash of the business run by the respondent. While the petitioner was thus in charge, according to the respondent, he misappropriated certain amounts entrusted to him for the purpose of payment of salary to other employees and also did not properly account for some of the other amounts which came into his hands. The petitioner having denied the liability, a suit, O.S.96 of 1987 on the file of the Subordinate Judge's Court of Ottapalam was filed by the respondent for recovery of a sum of Rs.35,571.28 with future interest In the plaint, the respondent company inter alia stated that the petitioner was art employee of the respondent company and he was in charge of the cash and accounts of the company and that therefore he was a trustee for the respondents's amounts and he had a fiduciary responsibility towards the respondent. The plaint claim was denied by the petitioner. The petitioner pleaded that he was merely a Salesman and was neither a Cashier nor an Accountant and that he had no charge of the accounts of the respondent or of the moneys of the respondent. The Trial Court by judgment dated 31-8-1988 decreed the suit finding that even going by the admissions of the petitioner he was in charge of the cash and accounts of the respondent and that he had not even repudiated on earlier occasions the allegation of the respondent that he was a Cashier and Accountant of the respondent. The court also held that the petitioner had handled the cash of the company as a Cashier. The suit was decreed overruling the contentions of the petitioner for the sum claimed in the plaint with future interest at 6% per annum.

(2.) The respondent put the decree in execution. The respondent realised a portion of the amount due under the decree by sale of one item of property which it attached and sold in execution. For the balance amount due under the decree the present Execution Petition, E.P. 91 of 1990 was filed by the respondent. The respondent reiterated that the petitioner was liable in a fiduciary capacity to the respondent and he was deliberately refraining from paying off the balance decree amount and that he is liable to be arrested and detained in civil prison. The petitioner opposed the claim of the respondent The petitioner repudiated the claim that he was bound in a fiduciary capacity to account to the respondent. He pleaded that he cannot be arrested in execution of the decree as he has no means to pay the decree amount and that he had not neglected to pay the same. The executing court by the order under challenge has overruled the objections of the petitioner and has held that he is liable to be arrested without any evidence on the side of the decree holder regarding his means in view of the fact that he was bound in a fiduciary capacity to account for the decree amount to the respondent and in view of clause (c) of the proviso to S.51 of the Code of Civil Procedure. It is this order that is challenged by the petitioner in this Civil Revision Petition.

(3.) Sri Prasad, counsel for the revision petitioner judgment debtor submits that the petitioner was only a Sales Assistant in the employment of the respondent and that it cannot be held that he had any fiduciary capacity towards the respondent or that he can be arrested even without evidence of his means to pay and his neglect to pay the decree amount. He attacks the order of the court below by pointing out that the court below could not have ordered his arrest without evidence on the side of the respondent decree holder regarding his means to pay the debt and -since it has not been established that he has the means to pay the decree amount, the order of the court below directing his arrest is one without jurisdiction. Sri. Prasad also submits that even assuming that clause (c) of the proviso to S.51 of the Code of Civil Procedure is attracted and it be held that he is liable to be arrested since he was bound in a fiduciary capacity, even then he cannot be arrested without the condition of clause (b) of the said proviso also being satisfied and that in that view also the order of the court below is one without jurisdiction. Sri. Sankaran, counsel for the respondent decree holder counters this argument by submitting that the petitioner was the Cashier and Accountant of the respondent, and was in charge of the cash and the accounts of the respondent, that he had misappropriated the cash entrusted to him and that therefore he was clearly bound in a fiduciary capacity to account for the amount to the respondent, that the adjudication in the suit was on the basis that he was the Cashier of the respondent and that would mean that he had a fiduciary capacity to account for the amounts received by him on behalf of or from the respondent and that no further evidence is contemplated, or needed for the executing court to hold that the petitioner was bound in a fiduciary capacity to repay the decree amount. He also controverts the submission of Sri. Prasad that even if clause (c) of the proviso to S.51 of the Code of Civil Procedure is satisfied it has to be shown further that the petitioner had the means to pay the debt and had neglected to pay and submits that once clause (c) of the proviso to S.51 of the Code of Civil Procedure is shown to be attracted, an order for arrest has necessarily to follow without any further enquiry. He therefore submits that the order of the court below is correct and is well within its jurisdiction and requires only to be confirmed.