RASIKLAL V. SHAH Vs. SHRI BHIKHABHAI S. PATEL

JUDGEMENT

(1.) The conditions mentioned in the proviso to Section 51 of the Civil Procedure Code are mandatory and must be strictly complied with, and that no order for arrest should be made unless the court is satisfied for reasons to be recorded in writing that the judgment-debtor should be committed to prison for one of the reasons set out in the proviso. The learned judge has completely lost sight of the wholesome principle underlying the proviso to Section 51 that the object of detaining a judgment-debtor in civil prison is not to punish him for any crime or default but it is only with a view to enable the decree-holder to realise the decretal amount and it is only for the purpose of achieving the said objective that the conditions have been prescribed in the proviso. In the ultimate analysis, it is the contumacious conduct on the part of the judgment-debtor and not merely his inability to pay which renders him liable to be arrested. If the proviso is construed otherwise as empowering the court to order arrest and detention at any time after passing of the decree on account of some fortuitous circumstances that the judgment-debtor had come by some resources and had failed to discharge the decree, such a power would be, apart from being inhuman, violative of Article 11 of the International Covenant of Civil and Political Rights and Article 21 of the Constitution. Since Section 51 of the Civil Procedure Code embodies the same principle as that which is embodied in Article 11 of the Covenant (vide; Jolly George Varghese v. The Bank of Cochin, AIR 1980 SC 470), the conditions which have been prescribed in the proviso are intended to protect the debtors and the court must be satisfied itself whether in light of the material on record the case, of a given judgment-debtor comes within any of the clauses of the proviso irrespective of the presence or absence of the judgment-debtor before the Court.