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Himachal Pradesh High Court · body

2000 DIGILAW 76 (HP)

VIJAY KUMAR v. PUNJAB NATIONAL BANK

2000-04-06

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.—This Revision Petition is directed against the order dated 25.6.1999 passed by the learned Senior Sub Judge, Hamirpur in Execution Petition No. 33/1994 titled Punjab National Bank v. M/s. Soni Steel Metal Industries and others, whereby the petitioner/JD has been ordered to be detained in civil prison for non-payment of the decretal amount after rejecting the application moved by him for vacating the ex-parte order dated 18.1.1999. 2. The material facts relevant for determination of the present controversy are that the respondent/ DH Punjab National Bank filed an application for execution of decree dated 5.9.1993 the petitioner-JD and respondents-JDs for realising the decretal amount of Rs. 1,30,096. A perusal of the record reveals that some movable properties of the JDs have been attached. On 18.1.1999 the learned Senior Sub Judge proceeded to pass the following order : "Heard. Let warrant of sale be issued to the Naib Tehsildar Bhoranj in respect of the attached movable property in the following manner :— Proclamation at the spot on 18.2.1999. Sale at the spot on 18.3.1999, On taking steps and report be called for 26.3.1999. Since the recovery of about Rs. 2,00000/- is involved in this execution which as per statement of Shri J.C. Sharma cannot be recovered from the sale of movable property. Shri Sharma submits at the bar that J.D. No, 1 has disposed of his entire property and as such, he prays that warrant of arrest be issued against him. Heard. Allowed. Issue warrant of arrest against J.D. No. 1 on taking steps returnable for 26.3.1999." 3. On 6.4.1999 petitioner/JD moved an application under Order 21 Rule 106 read with Section 151 CPC for setting aside the ex-parte order of detention of the petitioner-JD in civil prison. The said application however was dismissed by the learned Senior Sub Judge by the impugned order with the observations that the petitioner-JD is a principal debtor who has failed to pay the amount of decree passed against him and who is also evading his arrest and that there was no force in his application. Hence, the present revision petition. 4. I have heard the learned Counsel for the parties and have also gone through the relevant papers placed on the record. 5. Hence, the present revision petition. 4. I have heard the learned Counsel for the parties and have also gone through the relevant papers placed on the record. 5. Arrest and detention of a JD in execution of a decree is a lawful mode of executing a decree by virtue of the provisions of Section 51 of the Code of Civil Procedure even in a decree for payment of money. However, such arrest and detention will be regulated by the provisions as contained in the proviso to Section 51 of the Code of Civil Procedure which reads as follows :— 51. Powers of Court to enforce execution : 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. Explanation.—In the calculation of the means of the judgment-debtor for the purposes 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." 6. Order 21 Rules 11-A and 37 of the Code of Civil Procedure also provide for the manner of executing a money decree by arrest and detention of the JD. Order 21 Rules 11-A and 37 of the Code of Civil Procedure also provide for the manner of executing a money decree by arrest and detention of the JD. Rule 11-A supra read as follows :— "11-A. Application for arrest to state grounds :— Where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for." Rule 37 supra reads as follows:— "37. Discretionary power to permit judgment-debtor to show cause against detention in prison.—(1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison : Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court. (2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor." 7. A combined reading of the aforesaid proviso and the Rules make the following abundantly clear : (a) There must be an application before the Executing Court for the execution of a decree for the payment of money by arrest and detention of the judgment debtor in civil prison stating the grounds on which arrest is applied for preferably to be accompanied by an affidavit; (b) The executing Court shall instead of issuing a warrant for his arrest issue a notice calling upon him to appear before the Court on a day to be specified and show cause why he should not be committed to the Civil Prison in execution of the decree. (c) Issue of show cause notice as aforesaid may be dispensed with if the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the executing court. (d) Before passing an order for detention of the JD in civil prison in execution of a money decree the executing court must be satisfied that the JD has wilfully and with mala fide intention to deprive the DH of the benefit of the decree refused to pay the decretal amount inspite of having sufficient means to pay as the more non-payment of the decretal amount does not necessarily amount to refusal or neglect to pay. 8. None of the aforesaid conditions are satisfied in the present case enabling the executing court to issue warrant of arrest against the petitioner-JD and to direct his detention in civil prison. 9. It is evident from the order dated 18.1.1999 already quoted herein-above that the arrest warrant has been ordered to be issued by the executing court not on the basis of any application duly supported by affidavit making out the grounds for arrest and detention of the petitioner-JD but on the oral request of the learned Counsel for the DH stating before it that recovery of about Rs. 2,00,000/- is involved in the execution which cannot be satisfied by the sale of the movable property and the JD has disposed of his entire property, therefore, a warrant of his arrest be issued. This oral prayer was not substantiated by anything having been brought on record from which it could be inferred that the petitioner-JD is evading the payment of the decretal amount with mala fide intentions and despite having the means to satisfy the decree. Therefore, the order directing issue of warrant of arrest of the petitioner/JD is apparently contrary to the aforesaid provisions of law inasmuch as no lawful ground was disclosed in a lawful manner to satisfy the court to enable it to direct issue of warrant of arrest. 10. Even the impugned order has been passed in a slip-shod manner. A bare perusal of the impugned order makes it clear that before directing the detention of the petitioner-JD in civil prison in execution of the decree the executing court has nowhere come to the conclusion that the petitioner-JD was deliberately and with mala fide intention avoiding the payment of the decretal amount. A bare perusal of the impugned order makes it clear that before directing the detention of the petitioner-JD in civil prison in execution of the decree the executing court has nowhere come to the conclusion that the petitioner-JD was deliberately and with mala fide intention avoiding the payment of the decretal amount. What the executing Court concluded is that JD has failed to make the payment and is evading his arrest. These conclusions apparently were insufficient to direct detention of the petitioner-JD in civil prison. 11. In view of the above the impugned order of arrest and detention of the petitioner-JD being illegal cannot be sustained and is liable to be set-aside. 12. As a result, this Revision Petition is allowed and the impugned order is set-aside. 13. The petitioner has deposited a sum of Rs. 15,000/- in the Registry of this Court. The said amount be remitted to the Executing Court for being paid to the decree holder as part payment of the decretal amount. 14. Parties are directed to appear before the Executing Court on 8.5.2000. Petition allowed.