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Madras High Court · body

2009 DIGILAW 2840 (MAD)

A. Nanjundan v. Alamelu

2009-07-31

K.K.SASIDHARAN

body2009
Judgment : This Civil Revision Petition is directed against the order dated 20.11.2008 in E.P.R. No.24 of 2008 on the file of the learned Subordinate Judge Nilgiris, at Udhagamandalam, whereby and whereunder order of arrest was passed against, the revision petitioner for his failure to pay the decree amount. 2. The petitioner was the defendant in O.S.No.744 of 1995 on the file of learned Subordinate Judge, Nilgiris. The said suit which was filed for a money decree was decreed as per judgment and decree dated 10. 1997 and the petitioner was directed to pay a sum of Rs.73.250/- with interest. 3. Subsequently, the respondent has filed Execution Petition in E.P.R.No.24 of 2008 before the learned Subordinate Judge, Nilgiris at Udhagamandalam to execute the decree. In the said Execution Petition, the respondent prayed for the arrest of revision petitioner as according to her, the revision petitioner was having the sufficient means to pay the decree amount and he was willfully delaying the payments. 4. The Execution Petition was contested by the revision petitioner as according to him, he was not having the means to pay the decree amount. In short, the defence was one of no means. 5. The learned Subordinate Judge considered the matter in the light of the pleadings and recorded a factual finding that the revision petitioner has denied the means to pay the decree amount. However, the Court shifted the burden on the revision petitioner to prove that he has no means. Accordingly, an order of arrest was issued against the petitioner. It is the said order, which is challenged in the Civil Revision Petition. 6. Even though notice was served on the respondent and her name is printed in the cause list, there is no representation for the respondent. 7. Order 21 Rule 37 of the Code of Civil Procedure provides for arrest and detention of the judgment debtor in civil prison, in case it was found that money decree against him was not satisfied. Even though notice was served on the respondent and her name is printed in the cause list, there is no representation for the respondent. 7. Order 21 Rule 37 of the Code of Civil Procedure provides for arrest and detention of the judgment debtor in civil prison, in case it was found that money decree against him was not satisfied. Order 21 Rule 37 of the Code of Civil Procedure gives a discretionary power to the executing Court to issue notice to the judgment debtor to show cause as to why he should not be detained in civil prison, Such notice should indicate that the judgment debtor has to pay the amount as shown in the Execution Petition and in case of his default in making payment, he has to show cause as to why he should not be committed to civil prison. 8. Order 21 Rule 40 of the Code of Civil Procedure provides the procedure to be adopted by the Const, on appearance of the judgment debtor in pursuance to the notice issued by the executing Court as per Order 21 Rule 37 of the Code of Civil Procedure. 9. When a judgment debtor appears before the Court in obedience to the notice issued under Order 21 Rule 37 of the Code of Civil Procedure, the Court, has to hear the decree holder and to take all such evidence as may be produced in support of the application for execution. The primary burden is on the decree holder to show that the judgment debtor is having the sufficient means to satisfy the decree and his intention was only to delay the execution of decree. After discharging the initial burden by the decree holder, the onus would be shifted to the judgment debtor to show that he has no means to pay the decree amount. When there are no materials on the side of the decree holder to prove the means of the judgment debtor, no arrest could be ordered against the judgment debtor. 10. The Law Commission had occasion to examine the provision regarding arrest and detention of judgment debtor in execution of Civil Court decree in the light of Section 51 of the Code of Civil Procedure and the Commission in its 54th report observed thus: “Perhaps, it could be argued that imprisonment of the judgment-debtor in the situation in Section 51, proviso, clauses (b) causes hardship. That clause applies where the judgment-debtor (i) has the means and refuses or neglects to pay or (ii) has had the means and has refused or neglected to pay. The essential condition in either case is the possession of means, coupled with contemporaneous failure or neglect to pay. Imprisonment, if it follows in such cases, is not based on mere non-payment, nor on more inability to pay, but is confined to cases where a person is able to pay and dishonestly makes default in payment.” 11. In Jolly George Varghese and Another v. The Bank of Cochin AIR 1980 SC 470 : 1980 (2) SCC 360 , the Honourable Supreme Court agreed with the views expressed by the Law Commission in its 54th report and Mr. Justice V.R. Krishna Iyer in his Lordship’s Inimitable style opined thus: “9. We concur with the Law Commission in its construction of Section 51, C.P.C. It follows that quondom affluence and current indigence without intervening dishonesty or bad faith in liquidating his liability can be consistent with Article 11 of the Covenant, because then no detention is permissible under Section 51, C.P.C. 10. Equally meaningful is the import of Article 21 of the Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Article 21, read with Articles 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhi case as developed further in Sunil Batra v. Delhi Administration, Sita Ram v. State of U.P. and Sunil Batra v. Delhi Administration lays down the proposition. 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 daridra Narayana, is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his willful failure to pay in spite 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 inferrable from Article 11 of the Covenant. Unreasonableness and unfairness in such a procedure is inferrable from Article 11 of the Covenant. But this is precisely the interpretation we have put on the proviso to Section 51, C.P.C. and the lethal blow of Article 21 cannot strike down the provision, as now interpreted.” 12. In Jolly George Varghese and Another v. The Bank of Cochin (supra) the Supreme Court also considered the issue regarding possession of funds by the judgment-debtor obtained after the decree and observed thus: “11. The words which hurt are “or has had since the date of the decree, the means to pay the amount of the decree”. This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Article 11 (of the Covenant) and Article 21 (of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor’s other pressing needs and straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonised Section 51 with the Covenant and the Constitution”. 13. Therefore, the learned Trial Judge was not correct in shifting the burden on the judgment debtor to prove the negative instead of directing the revision petitioner to show that the judgment debtor was having the sufficient means. 14. The learned Trial Judge was exercising the power of arrest and while exercising such drastic powers, there should be sufficient materials before the executing Court to come to a definite conclusion that the judgment debtor was having the sufficient means in his possession to pay the decree amount. However, no such satisfaction was arrived at by the learned executing Judge while ordering arrest of the judgment debtor. However, no such satisfaction was arrived at by the learned executing Judge while ordering arrest of the judgment debtor. Therefore, I am of the view that the matter requires reconsideration by the learned Trial Judge. 15. Accordingly, the order dated 20.11.2008 in E.P.R.No. 24 of 2008 on the file of the learned subordinate Judge, Nilgiris at Udhagamandalam, is set aside and the matter is remitted for fresh consideration. It is open to the respondent to produce materials before the executing Court to prove her contention that the petitioner is having necessary means to pay the decree amount. 16. In the result, the Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.