NARAYANA RAO Vs. LAKSHMI DEVI

JUDGEMENT

(1.) This revision petition is directed against the order dated 24-9-1982 passed by the learned second Additional Subordinate Judge, Visakhapatnam in E.P. No. 30 of 1982 in O.S. No. 79/1975. That order has arisen out of a petition filed under Order 21 Rules 22 and 37 of the Code of Civil Procedure for execution of a decree for payment of Rs. 3, 976/- by arrest and detention of the judgment-debtor in civil prison. The court below came to the conclusion that the petitioner herein has about 25 acres of land within the jurisdiction of that court, which is mortgaged to the Union Bank of India and that he is, in that view of the matter, a man of sufficient means who could have easily paid the decree costs of Rs. 4,000/-. The decree was obtained against him on 31-12-1978 and after the passing of the decree, he sold five acres of land belonging to him situated at Karamchedu of Prakasam district at Rs. 8,000/- per acre in the year 1979. The lower Court, therefore, drew a conclusion from this conduct of the judgment-debtor thar even after realising substantial amount after the passing of the decree, he failed to discharge the small amount of the decree costs and therefore, he was liable for arrest and detention in civil prison. The lower court accordingly ordered the arrest of the judgment-debtor for the purpose of committing him to civil prison. Thereafter this civil revision petition was filed into this court and the order was suspended on the condition of the petitioner depositing Rs. 1,500/- into the lower court within six weeks from 15-10-1912. It is the agreed case of both the learned counsel that this order has been complied with.

(2.) The crucial question to be considered in the Civil Revision Petition is whether the order of arrest of the petitioner for the purpose of committing him to civil prison made by the court below in execution of the decree for payment of money is in consonance with the provisions of Section 51 of the Code of Civil Procedure which reads as follows: Sec. 51 "Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree-- (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property; (c) by arrest and detention in prison for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that section; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require; Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons in orded in writing, is satisfied (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree- (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, of (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property: or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or (c) that the decree is for a sum, for which the judgment-debtor was bound in a fiduciary capacity to account; Explanation: In the calculation of the means of the judgment-debtor for the purpose of clause (b) there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force is exempt from attachment in execution of the decree.'

(3.) A reading of the provisions of the above section makes it clear that the arreit and detention of a judgment- debtor in civil prison in ex-ecution of a decree for payment of money is not a matter to be resorted to lightly. ' The scheme of Section 51 C.P.C.is to ensure that sufficient reasons exist for making an order of arrest and detention of a judgment-debtor in civil prison in execution proceedings. Morever. it is also evident that is every case of non-payment of the decretal amount, a judgment-debtor is not liable to be arrested and detained in civil prison unless the case falls within one of the clauses of the proviso to section 51 C. P. C. The relevant provisons of the section for consideration in this case will be clause (b) of the proviso to Section 51 C. P. C. Under the provisions of Section 51 CPC. what the court is required to do is that it should apply its mind to ensure that the judgment-debtor had, dishonestly transferred or concealed or committed any other act of bad faith in relation to his property since the date of the decree with the object of obstructing or delaying the execution of the decree so as to render the decree a dead letter in the hands of the decree- holder. The lower court has not addressed itself to this aspect of the matter and no part of the alienation made by the decree-holder has been done in a manner which comes within the catch of the proviso to Section 51 C.P.C. What the court below has done is that merely because there has been an alienation of a part of the property by the judgment-debtor, it came to the conclusion that it warrants the arrest of the judgment-debtor for committing him to the civil prison. In the absence of any positive finding that there was wiful neglect or refusal to pay the amount of the decree, it would be extremely difficult to visualise that person could be put behind the bars in pursuance of a civil proceeding by any court of law. I am fortified in my reasoning by a decision of the Supreme Court in folly George Varghese V Bank of Cochin. In this case, the Supreme Court has considered the provisions of Section 51 CPC. read with Order 21 Rules 21 and 37 CPC. and Article 11 of the international Covenant on Civil and political Rights and Article 21 of the Constitution of India. Mr. Justice Krishna Iyer has finally held, after an elaborate discussion of the provisions mentioned above that.