PAREKH NAVNITLAL HIRALAL Vs. BHAGWATRAI MAGANLAL JARIWALA

JUDGEMENT

(1.) The trial court has passed a very shocking and surprising order on 9-12-80 on an Execution application Exhibit 17 in Special Darkhast No. 36/77 ordering the arrest of the petitioner-judgement debtor and of detaining him in Civil prison. It is difficult to find out as to on what ground this order has been passed, but one thing is clear that it has been passed completely ignoring the proviso contained in Section 51 of the Code of Civil Procedure and without coming to any finding or conclusion that any of the conditions contemplated in proviso to Section 51 of the Code of Civil Procedure are satisfied for the purpose of detaining the petitioner in civil prison.

(2.) In the judgement and order, the trial court has come to the conclusion that since the judgment debtor is not in possession of any property as disclosed from the report of the bailiff, the decree holder is entitled under law to request the court to detain him in civil prison. Therefore, the trial court has allowed the application and has passed the order that judgment debtor be detained in civil prison as prayed for. Now this order appears to have been passed completely ignoring the proviso to Section 51 of the Code of Civil Procedure. Section 51 of the Code of Civil Procedure reads as under:

(3.) Now proviso to Section 51 of the Code of Civil Procedure clearly provides as to when a person can be detained in a civil prison. As per that provision, the trial court has power to detain the judgment-debtor in civil prison. But that can be done only after giving the judgment-debtor an opportunity of showing cause as to why he should not be committed to prison, and recording reasons for the same in writing and further only after the court is satisfied that any of the conditions of proviso (a), (b), (c) are satisfied. Now in the present case, the trial court has not come to any conclusion regarding any of the conditions mentioned in proviso (a), (b), (c) to Section 51 of the Civil Procedure Code. From the order of the trial court, it is clear that no reasons are given in writing that the court is satisfied as to any of the conditions mentioned in clauses (a), (b), (c). The trial court has mentioned only one ground in the order that the judgment-debtor is not in possession of any property as disclosed from the report of the bailiff and therefore the decree-holder is entitled under law to request the court to detain him in civil prison. Except this, no other reasons are given. Now the reason, that is given, is outside the purview of proviso to Section 51 of the Code of Civil Procedure for detaining the judgment-debtor in civil prison.