P. v. MATHEW VS BANK OF COCHIN LTD — 1981 DIGILAW 339 (KER)

Judgment :- 1. The 2nd judgment-debtor in O'.S.No. 57/72 of the Subordinate Judge's Court of Cochin is the common revision petitioner. The suit was for money; and 40 cents of land with a residential building therein was attached before judgment. After judgment, the decree was transferred to the Ernakulam Sub Court for execution. When notice under 0.21 R.37 was issued, the petitioner entered appearance and filed objections. The proceedings were thereafter adjourned from time to time to enable the judgment debtors to effect payment. On 1st November, 1977 the petitioner did not appear. The decree holder filed an affidavit to prove means and arrest was ordered. Warrant for arrest was issued several times, but the petitioner remained elusive. By November, 1978 the Idikki Judicial District was formed and a District Court and Sub Court were established at Thodupuzha As the petitioner's place of residence fell within the jurisdiction of the newly formed Sub Court at Thodupuzha, the execution proceedings were transferred to that court under S.24 CPC. That court also ordered issue of warrant twice or thrice, but the petitioner was still not arrested. On 22-6-79 the court passed the following order. "Warrant not seen issued. Issue warrant. For return of warrant, 23-7-79." The petitioner challenged the above order before this court in CRP. No. 1741 of 1979. The revision was dismissed in limine, Viswanatha Iyer J. holding that the Thodupuzha court was only implementing the order of the Ernakulam court. The petitioner took up the matter in appeal before the Supreme Court (Civil Appeal No. 1991/79), and their Lordships remitted the matter to the executing court for fresh consideration of the question of means. It was also observed: "The question may squarely arise some day as to whether the proviso to S.51 read with 0.21 R.37 is in excess of the constitutional mandate in Art.21, and bad is part." 2. The executing court at Thodupuzha was thus called upon to consider the questions of "means" again. The petitioner also filed a fresh petition under S.47 (E. A. 106/80), praying for dismissal of the execution petition on the ground that there was no valid transfer of the execution proceedings from Ernakulam to Thodupuzha The question of exempting the 40 cents of land and the building under proviso (c) to S.60(1) was also raised. The petitioner also filed a fresh petition under S.47 (E. A. 106/80), praying for dismissal of the execution petition on the ground that there was no valid transfer of the execution proceedings from Ernakulam to Thodupuzha The question of exempting the 40 cents of land and the building under proviso (c) to S.60(1) was also raised. The court allowed the parties to lead further evidence, heard them and over-ruled the objections by two separate orders. The present two revisions are directed against the said orders. 3. The objections raised before the court below are reiterated before this court also with an added challenge to the constitutionality of not only the proviso to S.51, but also the main provision The arguments have been elaborate, except as regards the constitutional question, and their excellence must remain unaffected by the conclusions reached herein. 4. The first point is about the transfer of the execution proceedings from the Ernakulam court to the Thodupuzha court. Under S.38 and 39 of the Code, a decree can be executed either by the court which passed it or by a court to which it is sent for execution by the former. The decree here was not passed by the Thodupuzha court, nor was it sent to that court under S.39. The only other provision is S.24 where under the High Court can, of its own motion and without notice to parties, withdraw any suit, appeal or other proceedings pending in any Subordinate Court and transfer the same for trial or disposal to any other Subordinate Court competent to try and dispose of the same. The argument is that what was transferred by the High Court in this case was only the suit and not the execution proceedings, and that in as much as S.24 speaks separately of suit and other proceedings, a transfer of the suit would not amount to transfer of the proceedings in execution. Thus there was no valid transfer of the execution proceedings so as to confer jurisdiction on the Thodupuzha court to execute the decree. 5. The files of this court regarding "transfer of cases to the proposed Thodupuzha court" disclose what actually had transpired in the matter of transfer. Thus there was no valid transfer of the execution proceedings so as to confer jurisdiction on the Thodupuzha court to execute the decree. 5. The files of this court regarding "transfer of cases to the proposed Thodupuzha court" disclose what actually had transpired in the matter of transfer. On 8-9-1978 the Registrar addressed an Official Memorandum to the District Judges of Kottayam and Ernakulam requesting them to forward lists of pending cases "which may require transfer" to the new courts at Thodupuzha consequent on the formation of the new judicial district. Separate lists were to be sent up regarding part-heard cases, cases not part-heard, cases in which there were deposits, cases in which final decrees had yet to be passed and "execution cases". The District Judge of Ernakulam forwarded separate lists on 18-10-1978, and these included details of cases pending before the Principal Sub Court, Ernakulam. There were 23 Original Suits, 21 Appeals, one C. M. A., 6 Rent Control Appeals and 52 Execution Cases which required transfer to the Thodupuzha Sub Court. In the matter of execution cases, the particulars given were with reference to the suit numbers, and not the numbers of the execution petitions; but in indicating the total number, they were described as "E. Ps.". On 1-1178, the High Court issued an order, in exercise of its powers under S.24, transferring all the aforesaid 103 cases to the Thodupuzha Sub Court, specifying in each case the number furnished in the District Judge's letter dated 18-10-78.0. S No. 57/72 was included in the District Judge's list as an "execution case", and this was one of the 103 cases transferred by the High Court. It is true that if attention is confined to this court's order dated 1-11-78, it may not be possible to infer that what was transferred in O. S. No. 57/ 72 was the execution proceedings in that suit. But there can be no doubt, when the Official memorandum dated 8-9-78, the District Judge's letter dated 18-10-78 and the order dated 1-11-78 are examined along with the various lists involved, that what was transferred to the Thodupuzha court was the execution proceedings in O. S. No. 57/ 72. The suit had been tried and decreed by the court at Cochin; and what was pending before the Ernakulam court was only proceedings in execution. And it was these proceedings which were transferred to Thodupuzha on 1-11-78. The suit had been tried and decreed by the court at Cochin; and what was pending before the Ernakulam court was only proceedings in execution. And it was these proceedings which were transferred to Thodupuzha on 1-11-78. The petitioner was residing within the jurisdiction of the newly formed Thodupuzha court. Personal execution could have been taken only by that court. Factually, therefore, what was transferred was the execution proceedings in O.S. No. 57/72, and nothing else. 6. The above finding is sufficient to answer the petitioner's contentions on this point, but 1 shall examine them from another angle also. It is conceded that had there been a valid transfer, the Thodupuzha court could have continued the execution proceedings in question. The objection therefore concerns territorial jurisdiction, and not inherent jurisdiction. Under S.21 such an objection should have been taken at the earliest possible opportunity. The records disclose that the Execution Petition filed in the Ernakulam Sub Court (after transfer from the Cochin Sub Court) was numbered as Execution Petition 99/76, and that in pursuance of this court's order dated 1-11-78, it was sent over to the Thodupuzha court where it was renumbered as Execution Petition 18/78. The two courts had thus no doubt as to what was transferred. It seems to me that the petitioner himself had no doubt in the matter, because he had applied for and obtained copy of the order dated 22-6-79 in Execution Petition 18/78 of the Thodupuzha court in July 1979, for production along with CRP. No. 1741/79. The cause title of the CRP. clearly showed that what was being challenged was the order dated 22-6-79 passed by the Thodupuzha Court in Execution Petition 18/78 Ground D of the Memorandum of revision was in the following terms: "The petitioners were legally very much available to the executing court at Ernakulam, the transferor court, and any order of transfer, by the present court without notice to the petitioners is bad in law." In other words, the petitioner was complaining that before transferring the proceedings from the executing court at Ernakulam, notice should have been given to him. He was thus fully aware by July, 1979 that what was transferred to Thodupuzha was the proceedings pending before the "executing court" at Ernakulam; and the only objection to the validity of the transfer rested on want of notice. He was thus fully aware by July, 1979 that what was transferred to Thodupuzha was the proceedings pending before the "executing court" at Ernakulam; and the only objection to the validity of the transfer rested on want of notice. There was no case that the execution proceedings had not been transferred, or that what was transferred was only the suit. Still he did not raise the present objection either in the CRP before this court, or in Civil Appeal before the Supreme Court, disposed of on 4-2-80. The objection that there was no transfer of the execution proceedings as such was taken for the first time in E.A No. 106/80 filed before the Thodupuzha Court on 5-7-80. His present contention that he came to know of the true position only after remand by the Supreme Court cannot be accepted under the circumstance He was certainly aware, at least from July 1979, of the "true position" that the High Court had transferred Execution Petition 99/ 76 of the Ernakulam Court to the Thodupuzha Court and that that court had proceeded with the matter after renumbering it as Execution Petition 18/ 78. 7. In Ramanna v. Nallaparaju (AIR. 1956 SC. 87) it has been held that a court to whose jurisdiction the subject matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and that if a person fails to object to execution by such court at the earliest opportunity, he should be deemed to have waived the objection. The principle is applicable to execution proceedings also, at least in view of S.21 (3) of the Code. Assuming therefore that what was transferred to the Thodupuzha Court in November, 1978 was only the suit and not the execution proceedings, the petitioner should be deemed to have waived all objections based on that circumstance by reason of his failure to raise it in the CRP. and the Civil Appeal of 1979 The first contention of the petitioner can not therefore succeed. 8. Turning to the constitutionality of S 51, the complaint, barely voiced at the hearing, is that it allows a decree-holder to arbitrarily choose one or other of the different modes of execution prescribed in clauses (a) to (e) thereof, without any guideline. and the Civil Appeal of 1979 The first contention of the petitioner can not therefore succeed. 8. Turning to the constitutionality of S 51, the complaint, barely voiced at the hearing, is that it allows a decree-holder to arbitrarily choose one or other of the different modes of execution prescribed in clauses (a) to (e) thereof, without any guideline. The principle is well settled that where a statute offers no guidance to the executive in the matter of its application to different persons or objects and consequently confers an arbitrary power on it to discriminate between them, the same may offend the equality provisions of Art.14 of the Constitution. S.51 of the Code however does not confer any power on the decree-holder as such; the power is conferred on the court, and that is "subject to such limitations and conditions as may be prescribed". Decided cases show that conferment of power on a high executive authority has always been treated on a different footing from conferment of such power on others and the scope for presumption in favour of proper exercise of the power is greater when it is conferred on a court, and that too, for the purpose of giving effect to its decisions. Execution of a decree is enforcement of legal rights declared by a court in accordance with law; and as indicated by clause (e) of S 51, the manner of enforcement may depend upon the facts and circumstances of each case. If giving of full guidelines applicable to every case is a condition precedent, the legislature will have to attempt the impossible. The powers of the court are also circumscribed by the rules contained in the First Schedule to the Code, and rules framed under S.122 and 125. In the case of execution by arrest and detention in a civil prison, the proviso to S.51, the provisions of Ss 55 to 59, and R.37 to 40 of 0.21 impose "conditions and limitations" on the court's power. In exercise of their discretion, courts have often frowned against "simultaneous execution"; they have also declined personal execution where decree holders are mortgagees of properties yielding surplus income and the judgment debtors have no other properties. In exercise of their discretion, courts have often frowned against "simultaneous execution"; they have also declined personal execution where decree holders are mortgagees of properties yielding surplus income and the judgment debtors have no other properties. The words used in S.51 are "the court may"; and in a proper case the court can refuse execution in the mode asked for, if it is satisfied that the aim is to harass the judgment debtor or the attempt is otherwise vexatious. Discretion is not per se discrimination, and the discretion conferred on the court by S.51 is also not unfettered. 9. As to the proviso to S.51, it is really a further restriction on the power conferred on the court by S.51(c). In a decree for payment of money, the judgment debtor cannot be arrested unless one or other of the conditions prescribed in clauses (a) to (c) is satisfied. And before deciding whether the conditions are satisfied, the judgment debtor must also be given an opportunity to show cause. There must be an enquiry by the court and the court must be satisfied, for reasons recorded in writing, that the judgment debtor's conduct is contumacious. Art.21 of the Constitution which provides (so far as it is relevant for the present purpose) that "no person shall be deprived of personal liberty except according to procedure established by law" was apparently inspired by the Magna Carta which told King John that no man shall be taken or imprisoned save by the lawful judgment of his peers or by the law of the land. The Fifth and the Fourteenth Amendments to the Constitution of the U. S. A. declare the same principle, though the "due process" therein may mean something more than "procedure esta-blised by law". It was at one time thought that all that was necessary to justify deprivation of personal liberty was a law and a procedure established by it; but the position is now clear that the law must be a valid one, not only with reference to the competence of the legislature which has made it, but also with reference to other constitutional mandates, including the test of reasonableness under Art.19 where the rights enshrined therein are involvedf Art.3 of the Universal Declaration, 1948 declares that "everyone has the right to liberty". Art.5 of the European Convention on Human Rights, 1950 provides that no one shall be deprived of his liberty "save in the following cases and in accordance with the procedure prescribed by law"; and one of the cases exempted is:- "the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law". Art.11 of the Covenant on Civil and Political Rights, 1966 says that no one shall be imprisoned "merely on the ground of inability to fulfil a contractual obligation". The Central Law Commission 54th Report. considered the impact of the above Covenant on S.51 of the Code of Civil Procedure, and decided against modifying the existing provisions, though it was observed that the circumstance that a person had means once may not justify his incarceration if he has none "now". I am referring to these aspects because the question has been considered at some length in Civil Appeal No. 1991/79 itself (AIR. 1980 SC. 470). The court observed: "It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of daridranarayana, is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Art.21 unless there is proof of the minimal fairness of his wilful failure to pay inspite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferable from Art.11 of the Covenant. But this is precisely the interpretation we have put on the proviso to S.51,CPC. and the lethal blow of Art.21 cannot strike down the provision, as now interpreted " Art. 11 of the Covenant prohibits imprisonment merely on the ground of inability to pay; but if there is a refusal to pay despite availability of means, the embargo does not apply. As I understand the proviso to S.51, it does not strike at mere poverty; it strikes at dishonest conduct, bad faith, concealment and the like. As I understand the proviso to S.51, it does not strike at mere poverty; it strikes at dishonest conduct, bad faith, concealment and the like. Existence of means in presenti and a refusal or neglect to pay, notwithstanding enquiry by the court and a finding as to the availability of means, is the thrust of clause (b) of the proviso. The provision is not designed to imprison a man without means its aim is to compel the man who has means to perform his contractual obligation, if not the duty to obey the command of the court. Where poverty is put forward as a pretence, and that fails, a little bit of coercion is considered permissible. Even this coercive process has the limits prescribed by S.55 to 59. The attempt is not to make poverty a curse, but to ensure that no premium is placed on pretended poverty Dealing with the distinction between denial of liberty under procedure established by law, and arbitrary denial of liberty, Dicey (2) An Introduction to the Study of the Law of the Constitution-10th Edn. p. 192. said: 'This explains the thrill of enthusiasm with which all Europe greeted the fall of the Bastille. When the fortress was taken, there were not ten prisoners within its walls at that very moment hundreds of debtors languished in English gaols. Yet all England hailed the triumph of the French populace with a fervour which to Englishmen of the 20th Century is at first sight hardly comprehensible. Reflection makes clear enough the cause of a feeling which spread through the length and breadth of the civilised world. The Bastille was the outward and visible sign of lawless power." 10. As indicated earlier, the question was not fully argued before me. All that was done was to refer to some of the passages in the judgment of the Supreme Court in Civil Appeal No. 1991 of 1979 But that court itself has said that S.51 is beyond the reach of Art.21 "as now interpreted"; and as for Art.14, I am only expressing my views without the benefit of a full bearing, and without even ordering notice to the Central Government. In my opinion, S.51 is not unconstitutional. 11. The third question raised is about the finding regarding the means of the petitioner. In my opinion, S.51 is not unconstitutional. 11. The third question raised is about the finding regarding the means of the petitioner. In terms of the remand, the court below had to consider two alternatives: (i) Whether the petitioner is having current means, despite current pressures, to pay; or (ii) Whether he had had sufficient means in the past, and had dishonestly evaded or postponed payment. As for the past, it was an admitted fact that the petitioner was getting income from 24 acres of rubber plantation. The decree was in January, 1975; and a receiver was appointed for the estate in February, 1978 in execution of two other decrees obtained by the same decree holder. The annual income from the estate was between Rs. 25.000/- to Rs 30.000/-. On a reasonable estimate, therefore, the petitioner must have come into possession of atleast Rs. 75,000/- after the date of the decree and before dispossession by the receiver Still, nothing was paid. The petitioner did not get himself examined even after the remand. He had no case that the said income or any part of it had to be diverted to meet other pressing needs, including the liability in the other decrees. Besides the plantation, he has also an automobile workshop at Thodupuzha with a capacity to repair and service 40 vehicles at a time. No doubt, his foreman gave evidence that it was running at a loss; but the account books were not produced though summoned. The court below was not prepared to accept the foreman's bald statement; it took the view that current means are also there. At any rate, there was absolutely no evidence regarding other pressures, present or past. In the opinion of the executing court, the petitioner was not a daridranarayana but a planter and businessman who could have, if he was honest, paid at least a substantial part of the decree debt. This finding regarding the past and the present is based on material and I see no reason to interfere with it in procee-dingsunder S.115 C.P.C. 12. The only other question is about the exemption claimed for the residential building and the site, under proviso (c) to S 60(1) As held by the Supreme Court in Appasaheb v Bhalachandra (A.I R.1961 SC. The only other question is about the exemption claimed for the residential building and the site, under proviso (c) to S 60(1) As held by the Supreme Court in Appasaheb v Bhalachandra (A.I R.1961 SC. 589) an 'agriculturist' within the meaning of proviso (c) is a person depending for his maintenance on tilling the soil and who is unable to maintain himself otherwise. If he has other substantial income, be does not qualify for the exemption. The petitioner herein did not adduce any evidence to show that he was depending for his maintenance on agricultural operations. Obviously, he had other sources of income There was also evidence to show that a part of the building was being used as a dispensary by his wife, a medical practitioner. In this state of affairs, the finding of the court below that the petitioner does not belong to the class of people intended to be protected by clause (c) is again not open for review in the present proceedings. The revisions are therefore dismissed, but without any order as to costs. Dismissed.