GEORGE MATHEW Vs. GRACY GEORGE

JUDGEMENT

(1.) THIS Civil Revision Petition is directed against the order of the execution court in a proceeding for execution of a money decree finding that the petitioners are liable to be arrested and detained in civil prison on the reason that in spite of sufficient means, they have willfully neglected to make the payment. Notice under Rule 37 of Order 21 CPC was issued to the petitioners and in response the petitioners contended that they have no means to pay the decree debt and that they are not liable to be arrested and detained in civil prison. The question of the petitioners' liability for arrest and detention was enquired into by the execution court and the evidence consisted solely of the oral testimonies of the decree holder's husband as PW1 and that of the second judgment debtor as DW1. Thus there was absolutely no counter evidence to the decree holder's evidence regarding the liability of the petitioners who were judgment debtors 1 and 3 for arrest. The court would accept the decree holder's evidence and hold that the petitioners are liable to be arrested and detained. As regards the second judgment debtor in the case who is not a party to this Civil Revision Petition, the prayer for arrest was declined.

(2.) I have heard the submissions of Sri. John Varghese, learned counsel for the petitioners and also those of Sri. V. Giri, learned counsel for the respondent decree holder. Mr. John Varghese would submit that in terms of Sub-rule (1) of Rule 40 of Order XXI CPC as well as Section 51 of the same Code, it is obligatory on the part of the execution court to afford a further opportunity to the judgment debtor to show cause against his detention in civil prison after the court has entered a finding that the judgment debtor has sufficient means and has willfully neglected to pay the decree debt. Mr. John Varghese would rely on the judgment of the Supreme Court in Jolly George Varghese v. The Bank of Cochin [ (1980) 2 SCC 360] and argue that an order of arrest which affects the liberty of a citizen is not to be issued lightly. Such an order can be passed only on the basis of objective satisfaction of the Court on cogent evidence that the judgment debtor has neglected to pay the decree debt in spite of sufficient means. A further opportunity should be given to the judgment debtor for showing cause against detention in civil prison. Sub-rule (1) of Rule 40 of Order XXI CPC highlighted before me by Mr. John Varghese is quoted below:

(3.) A conjoint reading of Rules 37 and 40 of Order XXI and Section51 will show that the Code envisages only one inquiry regarding thejudgment debtor's liability for detention in civil prison in execution of a money decree. The inquiry can be either when objections are filed by the judgment debtor in response to a show cause notice against arrest issued to him under Rule 37 or when he is arrested and brought before court before holding any inquiry regarding his liability for arrest. The inquiry referred to in Sub-rule (3) of Rule 40 of Order XXI is that inquiry. It is such an inquiry which has been conducted in this case against the petitioners. The words "the court shall proceed to hear the decree holder" appearing in Sub-rule (1) of Rule 40 only refer to the initial hearing regarding necessity of holding an inquiry and it is pursuant to such a hearing that the decree holder adduced evidence in this case. The permission granted by the execution court to the judgment debtors for adducing counter evidence actually amounts to "opportunity for showing cause" against arrest. Sub-rule (3) of Rule 40 makes the position free of all doubts and it is clear that the execution court is not under any obligation to grant a further opportunity to a judgment debtor to show cause against arrest once an inquiry under Rule 40 in response to arrest notice under Rule 37 has been completed with the participation of the judgment debtor.