KOLI LAMBHABHAI BHANABHAI Vs. SHUKLA HARILAL NARMADASHANKER

JUDGEMENT

(1.) The petitioners are judgment-debtors. The respondent judgment-creditor obtained a decree for recovery of certain amount from the petitioners. It is not clear from the record of the case as to for how much amount the judgment-creditor has obtained decree. At one place sum of Rs. 11 70 is written while at another place sum of Rs. 823.50 ps. is mentioned. Be that as it may this aspect is not important for deciding the revision petition.

(2.) The judgment-creditor filed execution application for recovery of the amount of decree. Since the amount was not recovered he also applied by filing application Exh. 18 for detaining the judgment-debtors in civil prison. The petitioners judgment-debtors resisted the application and contended that there were enough immovable properties from which the decretal dues can be recovered. The trial Court rejected the aforesaid contention and held that it was for the judgment-debtors to produce evidence to show that they were having sufficient properties. The trial Court then passed order directing the judgment-debtors to be detained in civil prison and ordered to issue warrant for detention under the relevant provisions of C. P. Code. It is against this order the present revision application is filed by the petitioners-original judgment-debtors.

(3.) The trial Court has not taken into consideration the provisions of Sec. 51 read with Order 21 Rule 37 of C. P. Code. The trial Court has also equally ignored the settled legal position as per the decision of the Supreme Court in the case of Jolly George Varghese v. The Bank of Cochin reported in AIR 1980 SC 470. Section 51 deals with power of Court to enforce execution of decree. One of the modes provided is by arrest end detention in prison for such period not exceeding the period specified in Sec. 58 where arrest and detention is permissible under the provisions of Sec. 58. Other modes of enforcement of execu- tion of decree provided for are by delivery of any property specifically decreed; by attachment and sale or by appointing a receiver ox in such other manner as the nature of the relief granted may required Proviso to Sec. 51 is important. The proviso enjoins duty upon the Court to afford an opportunity of being heard to the judgment-debtor to show cause as to why he should not be committed to prison and the Court is also required to be satisfied on certain aspects which are mentioned in the proviso. Proviso to Sec. 51 reads as follows: