XAVIER Vs. CANARA BANK LTD

JUDGEMENT

(1.) Although this second appeal raises only a humdrum point in execution as to whether a judgment debtor can avail himself of the immunity from detention in the civil prison on the score of serious illness, as provided in S.59, Civil Procedure Code, Sri M. S. Kurien, learned counsel for the appellant, has engagingly argued his case on the exalted basis of the human rights, enshrined in the civil and political covenants agreed to by the member nations of United Nations Organisation, including India, and has passionately pleaded for a humanistic interpretation and application of the law relating to arrest and detention as a means of enforcing a decree for money.

(2.) I shall deal with the two points separately. The decree holder respondent obtained a decree as early as 26-8-1960 against the judgment debtor who was paying but small sums of money, leaving a large balance and so his arrest and detention in the civil prison was sought by the decree holder. On 20-10-1966 the Court found that the judgment debtor had means to pay the amount of the decree and had neglected to pay it. This order has become final and is not available for attack before me in this second appeal although counsel has claimed that it is amenable to reconsideration for the reason that every time a judgment debtor is, sought to be despatched to the civil prison, there must be a fresh finding about his ability to answer the decree. Unfortunately for him, the proviso to S.51 Civil Procedure Code, even with the humanistic amendment added by Act 21 of 1936, does not go so far. Mere inability to pay does not justify an order for detention in prison. Under the existing law, imprisonment as a means of enforcement of a money decree is available only if there has been some contumacious or unworthy conduct on the part of the judgment debtor, the burden of proving which is on the decree holder. It must be established that the judgment debtor has or has had after the decree was passed, the means to pay the decree amount or a substantial part thereof. It must also be shown that he refuses or neglects to pay or has refused or neglected to do so. In short, if at some time after the decree was passed, the judgment debtor has had the resources to pay a good part of the decree and notwithstanding this, has neglected to pay, he is amenable to incarceration. The question is not whether today he has the means to pay and neglects, but whether at any time after the decree was passed he has had the means and has neglected in the past. A ruling reported in Francis v. Palai Central Bank Ltd. ( 1959 KLJ 1036 ) seems to suggest by implication that if after the previous order upholding the judgment debtor's financial ability and calculated indifference a substantial change in his economic circumstances has taken place, a fresh investigation into ability and indifference has to be made and found, before he can be sent to jail. The humane spirit informing the proviso to S.51 is in keeping with such a construction. I am inclined to the view that if a debtor had sufficient means once to pay off the decree debt but since then has fallen on evil days and so is unable now to pay even a substantial part of the decree, it is unjust to commit him to the civil prison. That would be, not a means for recovering the debt for, how can a man unable to pay, do so by being behind the prison bars - but a punishment for non payment. Nor is a debtor's person to be kept as hostage till his relations discharge the liability. Similarly, it is not sufficient to say that a debtor has means pay to the particular debt under execution. There must be a refusal or neglect to pay. Where the judgment debtor, having other pressing claims to meet or compelling expenditures to incur, utilises the money he has for satisfying them, he cannot be held to neglect to pay the same to the decree holder. Assuming that a debtor has Rs. 10,000/- with him and a decree debt for Rs. 5,000/- is being executed against him, if he is afflicted by cancer and has immediately to undergo an expensive surgical treatment involving the entire Rs; 10,000/- he has, it is harsh to hold him liable to imprisonment because he does not divert the money to meet the decree debt instead of using it to salvage his life.

(3.) A brief sum up of the content of S.51(c) read with the proviso may now be given. The judgment debtor will come within the provision if he has current means to pay the amount of the decree and still refuses or neglects to pay the same. "Means", in this context, depends on liquid resources or assets which can reasonably furnish such resources. 'Neglect' is something less than refusal but more than mere omission and involves some sort of demand and indifferent response. Thus, if the judgment debtor makes a credible offer to pay in reasonable instalments, it is a negation of "neglect" to pay. I have explained this position at some length in a recent decision in S. A. No. 716 of 1969. Past resources are, under the proviso, sufficient only if there is at that time a refusal or neglect to pay If, for instance, the judgment debtor had at one time means to pay the decree amount but the decree holder did not then move to demand or recover the money, he cannot later rely upon this affluence to levy execution by arrest and detention, if the judgment debtor has by then sunk into straitened circumstances. Past affluence can furnish a ground for arrest and detention in prison only if it is accompanied, in time, with a move for payment by the decree holder and a refusal or neglect by the judgment debtor. A finding by Court of the means of the judgement debtor, and a refusal or neglect to pay by him can be relied upon in subsequent stages of the execution unless the judgment debtor proves that there has been a substantial change, for the worse, in his financial position. This interpretation of S.51(c) read with proviso (b) reflects the spirit and even the letter of Art.11 of the International Covenants on Civil and Political Rights.