KARUNAKARAN PILLAI v. JOSEPH — 1975 DIGILAW 90 (KER)

Judgment :- 1. The appellant in this case is the judgment-debtor in O. S. No. 48 of 1971 of the Munsiff's Court, Shertallai. In execution of the above decree notice was issued to the appellant under Order XXI R.37 to show cause why he should not be arrested and detained in prison for non-payment of the decree debt. The appellant appeared before court and filed objections, one of the objections being that he had no means to pay. However on a subsequent date to which the case stood posted, he paid Rs. 100/-. Some more amounts were also paid on the adjourned dates. The case stood posted to 28 91972 for payment of the balance amount. No amount was paid on that day and therefore warrant was issued. 2. The appellant then filed a petition for permitting him to pay the decree debt in instalments. That petition was dismissed. The order of dismissal was confirmed in appeal and second appeal. In the meanwhile a fresh petition for execution was filed. It was taken up after the disposal of the second appeal. On 23 111974 the court after hearing the parties passed the following order: "Heard. Issue warrant. Report 311975" Against the above order an appeal was filed before the District Judge, Alleppey. The main contention put forward was that the appellant had no means to pay. The appellate court held that since the appellant had given up the plea of no means and offered to pay the decree debt in instalments he was precluded from putting forward that plea again, and on that ground dismissed the appeal. It is against the above order that the present appeal is filed 3. Assuming that the judgment-debtor did not press the objection regarding means the further question is whether that alone would entitle the decree-holder to demand arrest and detention of the appellant. 4. The relevant provision dealing with arrest and detention of the judgment-debtor in execution of decree is contained in S.51 of the Civil Procedure Code. Assuming that the judgment-debtor did not press the objection regarding means the further question is whether that alone would entitle the decree-holder to demand arrest and detention of the appellant. 4. The relevant provision dealing with arrest and detention of the judgment-debtor in execution of decree is contained in S.51 of the Civil Procedure Code. The proviso to that section reads: "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 recorded 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, or (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." 5. Order XXI R.40 dealing with arrest and detention of the judgment-debtor reads: "40. Proceedings on appearance of judgment-debtor in obedience to notice or after arrest. (1) When a judgment-debtor appears before the Court in obedience to a notice issued under R.37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison." 6. Decisions uniformly lay down that the burden of proving that the conditions mentioned in S.51 exist is on the decree-holder. The decision in Harpal Singh v. Hira Lal (A. I. R.1955 Allahabad 402) is one of the cases which interprets the above provision. Decisions uniformly lay down that the burden of proving that the conditions mentioned in S.51 exist is on the decree-holder. The decision in Harpal Singh v. Hira Lal (A. I. R.1955 Allahabad 402) is one of the cases which interprets the above provision. The conclusions are laid down in the following passage: "Before the court can issue a warrant of arrest or a notice to the judgment-debtor under R.37, 0.21, it has to see that the judgment-debtor is liable to arrest in pursuance of the application for execution. This means that the nature of the decree should be such that it can be executed by the arrest of the judgment-debtor and that such circumstances exist that an order of arrest can be made against the judgment-debtor, in case the court was satisfied of those circumstances. Such circumstances are what are mentioned in cls. (a) to (c) to proviso to S.51" 7. In A. K. Subramania Chettiar v. A. Ponnuswami Chettiar (AIR. 1957 Madras 777) Ramaswami J. observed: "To sum up, the duty of the Court is to follow the procedure prescribed under O.XXI R.40CPC. and then find if it is satisfied on the evidence that the instant case before it falls within any of the clauses in the provisos (a) to (c). If the case falls within any of the clauses of the proviso then Court has to record its reasons in writing that the judgment debtor should be committed to prison for one of the five reasons set out there" in If the cause is insufficient the Court is bound to order arrest. If on the other hand the decree-holder fails in the discharge of his burden to prove that the circumstances specified in the section exist, the Court is equally bound to reject the application." 8. Sub-clause (b) of the proviso to S.51 C.P.C. in so far as it deals with the question of means has been interpreted in Harpal Singh v Him Lal (AIR. Sub-clause (b) of the proviso to S.51 C.P.C. in so far as it deals with the question of means has been interpreted in Harpal Singh v Him Lal (AIR. 1955 Allahabad 402) as follows: "Mere non-payment to the decree-holder when the judgment-debtor came into dos session of means subsequent to the date of decree will not always be sufficient for coming to the conclusion that the judgment-debtor refused or neglected to pay the decree-holder Refusal implies that a request was made to the judgment-debtor at the time when he had the means to pay and yet the judgment-debtor did not pay and declined to make any payment. There is nothing on the record to suggest that any such request was made when the judgment-debtor had that money with him and that the judgment-debtor refused to pay the decree-holder. Negligence to pay also connotes that when the judgment-debtor could have paid he just omitted to pay due to his negligence or carelessness If the judgment debtor had other claims to satisfy or other more urgent necessities to meet and spend the money on such purposes, it cannot be said that he neglected to pay the decree-holder In the absence of evidence which could have a bearing on these considerations the court below could not have felt satisfied that the judgment-debtor had refused or neglected to pay the decree-holder's amount within the meaning of Cl. (b) to the proviso to S.51, CPC." 9. The following observations of Krishna Iyer J. in Xavier v Canara Bank Ltd. (1969 KLT. 927) are also pertinent to the matter in hand: "A brief sum up of the content of S.51 (c) read with the proviso may now be given. The judgment-debtor will come within the provision if he has current means to pay the amount of the decree and still refuses or neglects to pay the same "Means", in this context, depends on liquid resources or assets which can reasonably furnish such resources. 'Neglect' is something less than refusal but more than mere omission and involves some sort of demand and indifferent response. Thus, if the judgment-debtor makes a credible offer to pay in reasonable instalments, it is a negation of "neglect" to pay." 10. 'Neglect' is something less than refusal but more than mere omission and involves some sort of demand and indifferent response. Thus, if the judgment-debtor makes a credible offer to pay in reasonable instalments, it is a negation of "neglect" to pay." 10. That a debtor offers to pay the decree debt in instalments need not necessarily mean in every case that he has at the time of the offer the means to pay the decree debt in full or a substantial part thereof. It is quite possible that he makes the offer to maintain his respectability before the public and under the hope and expectation that money would be forthcoming in future for payment of the instalments. Whether he has means to pay has to be decided irrespective of the offer to pay instalments. 11. The debt in the instant case is secured on immovable property and the decree directs recovery of debt by sale of the property mortgaged. In such cases execution against the person of the judgment-debtor is expected to be taken only after exhausting the remedy against the property. But the decree is not drawn up in accordance with the provisions of Order XXXIV C. P. C. It permits execution against the person of the appellant also. Still the fact that the appellant has secured his property for the payment of the debt, should be taken into account while deciding whether there has been neglect or refusal on his part. There is neither justice nor equity in asking a person who has mortgaged his properties for a loan that he should discharge the debt by sale of his other properties or in the alternative face an arrest and detention in prison. 12. I may also refer here to the observations of Ramaswami J. in A. K. Subramania Chettiar v. A. Ponnuswami Chettiar (AIR. 1957 Madras 777 at 779): "In considering whether the decree-holder has affirmatively shown that the judgment-debtor has sufficient means to pay the decree amount and which burden can be discharged either by affirmative evidence or by placing sufficient circumstances before the Court to lead to that inference, the Court should bear in mind what has been laid down in Madhavan Nambiar v. Chaldean Syrian Bank, Ltd., 1955-2 Mad. Q. 121 AIR. 1955 Mad. Q. 121 AIR. 1955 Mad. 409: viz., that the Code was amended so as to protect honest debtors of all classes from detention in prison and to confine such provisions to debtors proved to be recalcitrant or fraudulent or contumacious (Marris V. Ingram, per Jessel M. R. (1879) 13 Ch. D 338 at p. 343 (G)), that it applies to all judgment-debtors and the protection is not restricted only to small debtors that it is open to a Court to apply a judicial corrective to the extreme lengths to which the onus which the Code casts on decree-holders is sought to be taken by adopting the view that it is perfectly open to an executing Court on the materials placed before it, to come loan inference as regards the statutory findings required by proviso (a) (ii) and (b) of S.51 of the Code of Civil Procedure." 13. It follows that a person should not be subjected to arrest and detention on the sole ground that he owns a few items of property if the decree-holder is not in a position to establish refusal or neglect to pay the decree debt as provided in the proviso to S.51 C.P.C. 14. Ordinarily in a suit on a mortgage the procedure prescribed in Order XXXIV C.P C R.4,5 and 6 is expected to be followed and a decree against the person of the mortgagor is to be passed only under Order XXXIV R.6 after exhausting the remedy against the property. This procedure is not seen followed in this case. The decree that is passed and which is being executed is termed "preliminary decree", although it is not in strict conformity with the provisions of Order XXXIV R.4 or Form No. 5A of Appendix D of the Civil Procedure Code. No final decree is seen produced for the purpose of execution. The courts below omitted to note the irregularity. 15. It is clear from the foregoing paragraphs that the Munsiff and the appellate court have not considered whether there is an executable decree in the case, whether the nature of the decree warrants execution by arrest and detention of the judgment-debtor and whether a case of refusal or neglect has been made out or can be inferred from the circumstances proved in the case. I therefore allow the appeal. The order of arrest passed by the Munsiff and confirmed in appeal is set aside. I therefore allow the appeal. The order of arrest passed by the Munsiff and confirmed in appeal is set aside. The execution petition is sent back for disposal according to law. The parties will bear their respective costs. Allowed.