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1993 DIGILAW 302 (RAJ)

Rajasthan State Road Transport Company v. Hukam Singh

1993-05-13

V.K.SINGHAL

body1993
Honble SINGHAL, J.—Since a common question of law and similar facts are involved in the above three revision petitions, they are disposed of by this common order. (2). The dispute relates to the order passed by the Executing Court on 24.01.1992. An objection with regard to limitation was raised by the learned counsel for the respondents. After hearing the parties, the delay is condoned and the revisions are being considered to be within time. (3). The grievance raised by the learned counsel for the petitioner is that the Executing Court has no jurisdiction to send the Chairman and Managing Director, who were not the parties before the trial court, for civil imprisonment in execution of the decree. Learned counsel for the petitioner as referred to the provisions of Sections 51,55 and 58 of the Civil Procedure Code, besides the provisions of O.21, R. 37. (4). The procedure for execution has been provided under Sec. 51 CPC which is as under: "51. Learned counsel for the petitioner as referred to the provisions of Sections 51,55 and 58 of the Civil Procedure Code, besides the provisions of O.21, R. 37. (4). The procedure for execution has been provided under Sec. 51 CPC which is as under: "51. Powers of Court to enforce execution: 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) be 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 payment of money, execution by detention in prison shall not be ordered unless after giving the judgement debtor an opportunity showing a cause why he should not be committed to prison, the court, for reasons recorded in writing, is satisfied — (a) that the judgement 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 juris diction 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 properly, or committed any other act of bad faith in relation to his property; or (b) that the judgement 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 judgement debtor was found in a fiduciary capacity to account." (5). From the above provision it is evident that the detention in prison could be in respect of a decree for payment of money. Clause (e) of the above section provides that the execution could be in such other manner as the nature of the relief granted may require, would not cover the execution by way of arrest or detention in prison unless it has specifically been provided so. (6). Clause (e) of the above section provides that the execution could be in such other manner as the nature of the relief granted may require, would not cover the execution by way of arrest or detention in prison unless it has specifically been provided so. (6). Section 55 provides for arrest and detention of a judgement debtor, whereas the judgment debtor may be arrested in execution of a decree but that also in its application refers to a money decree, inasmuch as it has been provided that if a judgment-debtor expresses his intention to apply to be declared as insolvent . . . in sub-sec. (4) of Sec. 55, the intention could be that it is on account of non-payment of money for which decree has been awarded and a judgement debtor could be arrested and sent to civil imprisonment. Section 58 provides as under:— "58. Detention and release- Every person detained in the civil prison in execution of a decree shall be so detained, - (a) where the decree is for the payment of a sum of money exceeding one thousand rupees, for a period not exceeding three months, and (b) where the decree is for payment of a sum of money exceeding five, hundred rupees, for a period not exceeding six weeks: Provided that he shall be released from such detention before the expiration of the said period of detention,- (i) on the amount mentioned in the warrant for his detention being paid to the officer (ii) on the in charge of the civil prison, or or decree passed against him being otherwise fully satisfied, (iii) on the request of the person on whose application he has been detained, or (iv) on the omission by the person, on whose application he has been so detained, to pay subsistence-allowance. (7). From a perusal of the above provision, it is also clear that the detention in Civil prison could be for a period not exceeding 3 months where a payment of money is exceeding one thousand and the said period is not exceeding 6 weeks where the decree is for payment of a sum exceeding Rs. 500/-. All these provisions specially provide for a decree in respect of payment of money. (8). 500/-. All these provisions specially provide for a decree in respect of payment of money. (8). The, intention is notwithstanding anything the execution of a decree in the civil prison of a judg of the application, the issue a notice calling upon; made clear by order 21 rule 37, which provides that contained in these rules, where an application is for for the payment of money by the arrest and, detention ment debtor who is liable to be arrested in pursuance Court shall instead of issuing a warrant for his arrest, him to appear before the Court on to be specified in the notice and show cause why he should not be committed to civil prison. This also refers that arrest and detention could be permissible only in respect of execution of decree for payment of money. Order 21 Rule 41 provides for attachment of property for payment of money, that is an additional mode where the decree is for payment of money. (9). The submission of the learned counsel for the non-petitioner that the provisions of order 21 Rule 32 are applicable is not the correct interpretation of law. The said provisions are applicable where the party against whom decree for specific performance of contract or for restitution of conjugal rights or for an injunction has been passed. In the present case the submission of the learned counsel is that it is case of injunction and, therefore, power under this rule could be exercised. I am afraid, the decree in the present case could not be considered to be for injunction and the provisions of Order 21 Rule 32 CPC are not applicable. (10). Section 151 provides that inherent powers could not be exercised where there is specific provision made in the Code itself. The provisions referred to above are the specific provisions and, in view of the specific provisions being provided for civil imprisonment in respect of money decree, the inherent powers could not be exercised in respect of other decrees. (11). Reliance has been placed on the decision of this court in R.S.R.T.C. vs. Nand Lal (1). The main argument of the learned counsel for the petitioner is that it is only in respect of money decree that a person could be sent to civil imprisonment and the various ingredients of Sec. 51 have not been established and, therefore, the order passed is without jurisdiction. (12). The main argument of the learned counsel for the petitioner is that it is only in respect of money decree that a person could be sent to civil imprisonment and the various ingredients of Sec. 51 have not been established and, therefore, the order passed is without jurisdiction. (12). The submission of the respondents is that an appeal against the order passed by the Executing court was also filed but it was dismissed as not maintainable. According to him, as per order 21 Rule 32 CPC, the Executing court has enforced the decree as if it is in respect a decree for specific performance or for restitution of conjugal rights. His submission is that in the present case it is a matter of mandatory injunction by which the petitioners herein were directed to reinstate the respondents and, therefore, the power could not have been exercised by the court. He has also relied on the decision reported in 1992 R.L.W. 425 (2). (13). I have considered over the matter. On a perusal of various provisions of CPC and the authorities cited before me, I am of the view that the orders in the present cases could not have been enforced by the Executing Court by sending the Chairman and the Managing Director to civil prison. It may also be noted that the Chairman and Managing Director were not the parties in the suit, for which execution was sought and for the reason also no action p73 could have been taken against them. The order passed by the Executing court is, therefore, quashed. Mr. Bhandari has not disputed the proposition that once an order of reinstatement has been passed, then the respondents are entitled for salary from the date of reinstatement. It has been agreed upon that payment of salary shall be made to the respondents. On this position, I am of the view that in the facts and circumstances of the case, it will be fair and reasonable that the petitioners should pay salary to the respondents from the date of reinstatement and shall continue to pay the monthly salary till any final order by the petitioners or the competent court having jurisdiction is passed. The amount of salary till date shall be paid within 3 months from today and for the future months, it shall be paid within 15 days from the end of the month. (14). The amount of salary till date shall be paid within 3 months from today and for the future months, it shall be paid within 15 days from the end of the month. (14). The revision petitions stand disposed of with the above directions. (15). No order as to costs.