NARESH KUMAR Vs. SOCIAL MUTUAL BENEFIT COMPANY LTD

JUDGEMENT

(1.) THE petitioner is aggrieved by the order passed by learned Civil Judge (Senior Division), Paonta Sahib directing the detention of the petitioner herein in civil prison for non payment of the decretal amount. The order passed by the learned Court below is extremely cryptic and in total violation of the law laid down in Jolly George Varghese and another V/s. The bank of Cochin, AIR 1980 SC 470 holding that mere inability to pay the decretal debt does not per se attract detention in civil prison. The Court holds:

(2.) WE concur with the law Commission in its construction of S. 51, C.P.C. It follows that quandam affluence and current indigence without intervening dishonestly or bad faith in liquidating his liability can be consistent with Art. 11 of the Covenant, because then no detention is permissible under Section 51, C.P.C.

(3.) I find nothing on the record to show that there is any fact to show or establish dishonest intention on the part of the judgment debtor to discharge his debt. The law on this point is now well settled and does not require any further elaboration. This petition is accordingly allowed and the order dated 8th August, 2011 passed by the learned Civil judge (Sr. Division), Paonta Sahib directing the detention of the petitioner herein in civil prison is set aside. It will be open to the decree holder to establish before the learned executing Court that the judgment debtor was possessed of sufficient means to pay the debt or that he had such means and after passing of the decree has deliberately disposed of his property in order to avoid the execution of the decree and in such circumstance the provisions of Order 21, Rule 37 would be attracted. The petition is disposed of with no order as to the costs.