ANILKUMAR Vs. DIVYA

JUDGEMENT

(1.) The execution court instead of proceeding against the property, which is under attachment, initiated coercive steps against the judgment-debtor by issuing warrant of arrest under Rule 38 of Order XXI C.P.C. Consequently, the judgment-debtor was arrested and produced before the court and subsequently released on bond due to non-payment of subsistence allowance. The principal question came up for consideration is, whether it is permissible to take coercive steps under Rule 37 and 38 of Order XXI C.P.C. by issuing warrant of arrest against the judgment-debtor for his detention in civil prison, when his property is under attachment either at the trial stage or at the execution stage ? Can the court issue warrant of arrest at the execution stage to procure the presence of judgment-debtor in execution and under what circumstances such coercive steps can be initiated ?

(2.) At the execution of money decree, a warrant of arrest can be issued under Rule 38 of Order XXI C.P.C. only when it is found that it is not possible to recover the decree amount or any part thereof by resorting to other methods of execution under Order XXI C.P.C. The measures/methods of execution which can be adopted in execution of a decree should always be in accordance with the mandate under Sec. 51 C.P.C. which was carefully worded and drafted by giving first option for sale of movable or immovable property and second option probably, the last option in a money decree by arrest and detention, which reads as follows:

(3.) The entire scheme of Sec. 51 C.P.C. clearly postulates the procedure to be taken one after another in execution of a decree. The clause (b) to Sec. 51 C.P.C. specifies the procedure to be applied in execution of a decree for payment of money by the sale of property either with attachment or without attachment. The subsequent provision, clause (c) deals with yet another method of execution by arrest and detention of judgmentdebtor. It was included as a succeeding provision just after the normal method of execution of a money decree by the sale of property of judgment-debtor under clause (b), presumably as a precaution not to deprive the personal liberty of a person guaranteed under Article 21 of the Constitution, unless there is sufficient grounds for his arrest and detention in civil prison. Hence, it is not permissible to bypass the normal method of execution by sale of property under clause (b) so as to invoke clause (c) for the arrest and detention of judgment-debtor. The court may order execution of a decree by adopting clauses (a) to (e) attached to the main Sec. viz.,(a) by delivery of any property specifically decreed (b) by attachment and sale or by sale without attachment of any property (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 Sec. (d) by appointing a receiver or (e) in such other manner as the nature of the relief granted may require. The entire scheme of Sec. 51 C.P.C. hence would show that the court cannot exhaust the remedy under clause (c) by issuing warrant of arrest against the judgment-debtor without exhausting clause (b) of Sec. 51 by the sale of movable or immovable property, if any available. The principle behind it is succinctly summarized by the Apex Court in Jolly George Varghese and Another v. The Bank of Cochin [(1980) 2 SC 360]. The noble principle under Article 21 of the Constitution that no person shall be deprived of his life or personal liberty except according to the procedure established by law is for protecting a person from being arrested and detained in prison unnecessarily and it should be always in accordance with any of the procedure established by law, which stands for and requires strict compliance of its mandate and procedure. There cannot be any kind of dilution since it is guaranteed under the Constitution, but with the abovesaid exception, which requires strict adherence of both the mandate and procedure and conditions to be satisfied under any of the law in force so as to deprive the personal liberty of a particular person. In short, no warrant of arrest or coercive steps can be initiated against the judgment-debtor, when a property is available for sale by way of an attachment before judgment or at the execution. The availability of any other method of execution of decree of money either in part or in whole would exclude the extreme steps of execution by arrest and detention till such property was completely proceeded against or the property has become not available for execution for any other valid reasons. When other alternatives are available by way of immovable property or other properties which are under attachment and available for execution, there may not be any occasion to resort to clause (c) to Sec. 51 overriding clause (b). Further, the proviso attached to Sec. 51 C.P.C. deals with the restrictions imposed in issuing a warrant of arrest, which can be issued on satisfaction of clause (a), (b) or (c) attached to that proviso and would come into play only when clause (c) to Sec. 51 was taken as a method of execution. Hence, it is not permissible to issue warrant of arrest at the execution of a money decree under the premise of proviso attached to Sec. 51 C.P.C. so as to prevent likelihood of absconding or leaving the local limits of jurisdiction with the intent either to obstruct or to delay the execution of the decree at the stage when the matter falls under clause (b) of Sec. 51 C.P.C. Necessarily, there is no scope for issuing a warrant of arrest at the stage of clause (b) i.e. the sale of movable or immovable property of judgment-debtor and till the completion of that stage, no coercive steps either by issuance of warrant of arrest or detention in prison can be resorted to. Further, a warrant of arrest that can be issued for furnishing security or to show cause at the trial stage under Rule 1 of Order XXXVIII C.P.C. cannot be extended to in an execution proceedings of a decree for payment of money, except as stated above. In short, in order to exhaust the method of execution by arrest and detention of the judgment-debtor, it must be satisfied as a condition precedent that no other method of recovery of the decree amount in execution is available. The mandate of issuance of notice and the doctrine of 'no means' and 'lack of bonafides' though relevant in the determination of issue under Rule 37 of Order XXI C.P.C. r/w proviso attached to Sec. 51 C.P.C., may not have any application with respect to a property which is available for attachment and sale, which would otherwise fall under clause (b) of Sec. 51 C.P.C. In that stage or during the pendency of procedure under clause (b) for the sale of movable or immovable property, no warrant of arrest against the judgment-debtor can be issued.