BALAKRISHNAN NAIR Vs. K.B. PRABHAKARAN

JUDGEMENT

(1.) A compromise decree for money passed on 10.08.2004 has not yet been satisfied. E.P No. 4 of 2005 was filed in execution of the decree. Arrest and detention of the judgment debtor was sought. The judgment debtor approached this court in CRP No.947 of 2005 challenging warrant of arrest issued against him. It needs to be noticed that warrant was issued after taking evidence and finding the means of the judgment debtor in terms of Order 21 Rule 37 of the Code of Civil Procedure. The CRP was dismissed, but permitted the judgment debtor to wipe off the decree debt in 30 equal monthly instalments. It was made clear that he would be liable to be arrested and detained on default in payment of two consequent instalments. On default in payment, warrant of arrest was issued. The judgment debtor approached this court in CRP No.124 of 2010. Without noticing the earlier order in CRP No.947 of 2005 and the fact that warrant for arrest was issued originally after taking evidence, this Court set aside the order of warrant of arrest, granting opportunity to adduce evidence regarding the means. Thereafter the execution court issued fresh warrant of arrest, observing that the means of the judgment debtor was already found. The judgment debtor challenged the said order before this court in CRP No.461 of 2010. This Court in spite of the conduct of the judgment debtor, was inclined to permit the judgment debtor to wipe put the entire decree debt in 30 monthly instalments commencing from 01.10.2010. It was also provided that in case of three defaults, further proceedings for arrest would continue. Still there occurred default in repayment. Again warrant of arrest was issued. The judgment debtor challenged the same before this court in OPC No.287 of 2012. Again indulgence was shown by this court directing him to pay an amount of Rs. 3 lakhs on or before the last working day of January 2013 and to pay the balance within a further period of four months therefrom. It was specifically stated that no further time will be granted for payment of the decree debt. Again the judgment debtor defaulted payment. He approached this court in CRP No.521 of 2013 challenging the rate of interest provided in the compromise decree. The CRP was dismissed. Thereafter the judgment debtor had the audacity to file I.A No.1636 of 2015 and 1637 of 2015 challenging the very compromise decree contending that he did not sign the same. The I.As were dismissed as per Ext P7 order with compensatory cost of Rs. 3,000/-. The proceedings in execution are still lingering. On 22.11.2017 the judgment debtor filed a balance statement showing the balance decree debt payable as Rs. 4,78,985.45. On 25.11.2017 the decree holder submitted a statement to the effect that the balance decree debt is Rs. 10,73,042.70. Pending adjudication of the balance amount due under the decree, the court below directed payment of the admitted amount due as stated by the judgment debtor, namely Rs. 4,78,985.45 to be paid within ten days from 30.11.2017. It was further ordered that in case of default, warrant of arrest will be issued to detain the judgment debtor in civil prison. The contention now raised by the judgment debtor is that the order of issuance of the warrant of arrest is not in terms of Rule 11A of Order 21 of the Code of Civil Procedure and hence the order of arrest is illegal. Rule 11A Order 21 reads thus:

(2.) It is too late in the day for the judgment debtor to contend that the application seeking arrest and detention is not supported by an affidavit as required thereunder. As noticed supra, evidence was taken on the execution petition and the means was found. It was pursuant thereto that warrant of arrest and detention was ordered. Much water has flown thereafter. Suffice to say that showing any more leniency to the judgment debtor would be making a mockery of justice and procedure. The judgment debtor does not deserve any further indulgence under the equity jurisdiction of this Court. Though this is a fit case to impose costs, I refrain from doing so. The original petition is dismissed. I am sure that the execution court will make every endeavour to take the execution proceedings to a logical end as expeditiously as possible.