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2009 DIGILAW 865 (GAU)

Nirmalendu Dhar v. Nani Gopal Ghosh

2009-12-04

MAIBAM B.K.SINGH

body2009
ORDER Maibam B.K. Singh, J. 1. Heard Mr. P. Roy Barman, learned Counsel appearing on behalf of the petitioner and Mr. S. Deb, learned senior counsel appearing on behalf of the respondent. 2. This application under Article 227 of the Constitution of India has been filed praying for quashing and cancelling the orders dated 25-8-2009 and 27-8-2009 passed by the learned Civil Judge (Sr. Divn.), Kailashahar, North Tripura in Case No. Execution 03(M)/2009. 3. The present petitioner and the present respondent are the judgment-debtor and the decree-holder respectively in the said Execution 03(M)/2009, which was filed by the decree-holder for execution of a decree passed in his favour on 5-10-2007 in case No. M.S. 02 of 2007. On the day on which the said decree-holder filed his application under Order 21, Rule 11 of the CPC for the execution of the decree by arrest and detention of the judgment-debtor in civil prison and/or by attachment and sale of his movable and immovable properties for realisation of the decretal amount of Rs. 2 lakhs, the learned Civil Judge (Sr. Divn.), Kailashahar, North Tripura, passed the impugned order on 25-8-2009 issuing warrant of arrest against the judgment-debtor and also issuing writ of attachment of the movable property of the judgment-debtor. The impugned order dated 25-8-2009 was purportedly passed after hearing the counsel of the decree holder and also after taking into consideration of the provisions of Order 21, Rule 22(a) and Order 21, Rule 30 of the CPC. The judgment-debtor was neither notified nor heard before passing the impugned order dated 25-8-2009. The impugned order dated 27-8-2009 was only an affirmation and continuation of the said order dated 25-8-2009 by directing the O.C. Kailashahar Police Station and the Najir of the District Judge's Court, North Tripura, Kailashahar, to take appropriate steps and to render police help in respect of the execution of the warrants of arrest and attachment. On 27-8-2009 also, the learned Civil Judge (Sr. Divn.), Kailashahar, North Tripura, did not pass any order for issuing notice to the concerned judgment-debtor. 4. On 27-8-2009 also, the learned Civil Judge (Sr. Divn.), Kailashahar, North Tripura, did not pass any order for issuing notice to the concerned judgment-debtor. 4. It is the case of the petitioner that by issuing the said warrants of arrest and attachment straight away on the day on which the application for execution of the decree was filed without issuing any notice to the judgment-debtor to show cause and thereby without giving any opportunity of being heard to the judgment-debtor the learned civil Judge (Sr. Divn.), Kailashahar, North Tripura proceeded in violation of the provisions of Section 51, Order 21, Rule 11A, Order 21, Rule 17, Order 21, Rule 37 and Order 21, Rule 40 of CPC and also unfairly and unreasonably in violation of the well settled principles of law settled by the Hon'ble Apex Court in Jolly George Varghese v. The Bank of Cochin (1980) 2 SCC 360 : AIR 1980 SC 470 regarding the procedure to be adopted by a Court issuing a warrant of arrest for arrest and detention in execution of a decree and as such, the impugned orders are liable to be interfered with by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India in order to keep the concerned Court of learned Civil Judge (Sr. Divn.) within the bounds of its authority. 5. On the other hand, it is the case of the respondent that this application under Article 227 of the Constitution of India is not maintainable. According to the learned senior counsel of the respondent, the power of superintendence conferred by Article 227 is to be exercised most sparingly and it should not be invoked to correct mere errors of fact or of law. The learned senior counsel of the respondent refers to various decisions including Wary am Singh v. Amarnath AIR 1954 SC 215 ; T.C. Basappa v. T. Nagappa AIR 1954 SC 440 : Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675 : AIR 2003 SC 3044 ; Radhey Shyam Gupta v. Punjab National Bank (2009) 1 SCC 376 : AIR 2009 SC 930 ; Radhey Shyam v. Chhabi Nath (2009) 5 SCC 616 : 2009 AIR SCW 4006 and M.M.T.C. Ltd. v. Commissioner of Taxes AIR 2009 SC 1349 . Further according to the respondent, there has not been any infraction of any provision of the relevant law in passing the impugned orders and as such, no interference is called for in respect of the impugned orders. According to the, learned senior counsel of the respondent, since the application for execution of the decree was filed within a period of two years from the date of the decree, having regards to the provisions of Order 21, Rule 22, the Court executing a decree was not under any legal obligation to issue any notice to the judgment-debtor requiring him to show cause. Further, according to the learned senior counsel of the respondent, since the decree was for payment of money, it could be executed by detention in the civil prison of the judgment-debtor or by the attachment and sale of his property or by both and as such, there was no illegality on the part of the learned civil Judge (Sr. Divn.), Kailashahar, North Tripura, in passing the impugned orders. The learned senior counsel appearing on behalf of the respondent submits that the correctness of the decision in Jolly George Verghese (supra) was doubted in Ram Narayan Agarwal v. State of U.P. 6. Section 51 of the C.P.C. defines the jurisdiction and the power of the Court, in the execution of a decree. The manner of executing the decree is prescribed by the rules in the Schedule. The jurisdiction has to be exercised subject to such conditions and limitations as may be prescribed by the rules in the Schedule. As per Section 50 of the C.P.C., 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, inter alia, by attachment and sale or by sale without attachment of any property; by arrest and detention in prison for such period not exceeding the period specified in Section 58 of the C.P.C. where arrest and detention is permissible under that section. Further, as per proviso to this section 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 jurisdiction of the Court, or (ii) has, after 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 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. 7. The power of the Court executing a decree to order execution is not an unrestricted one. It is already noted that this jurisdiction has to be exercised as maybe prescribed by the rules in the Schedule. A brief survey of the relevant rules will help in making a just decision of the present case. As per Rule 21, Order 17, on receiving an application for execution of a decree as provided by Rule 11, Sub-rule (2), the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with the Court shall allow the defector be remedied their and there or within a time to be fixed by it. Further, as per Rule 21(1-A), Order 17, if the defect is not so remedied, the Court shall reject the application; These provisions are mandatory. As per Order 21, Rule 11A, in respect of an application for arrest and detention in prison of the judgment debtor, if shall state or be accompanied by an affidavit stating the grounds on which the arrest is applied for. As per Order 21, Rule 11A, in respect of an application for arrest and detention in prison of the judgment debtor, if shall state or be accompanied by an affidavit stating the grounds on which the arrest is applied for. Order 21, Rule 12 and Order 21, Rule 13 prescribe the requirements to be satisfied by the application for attachment of movable property hot in judgment-debtor's possession and for attachment of immovable property respectively. Order 21, Rule 21 empowers the Court in its discretion to refuse execution at the same time against the persons and property of the judgment-debtor. Order 21, Rule 22 requires, inter alia, notice to the judgment-debtor to show cause in respect of an application for execution made more than two years after the date of the decree. The proviso to Rule 22(1) is not relevant in the present case. Further, Rule 22(2) empowers the Court to proceed without issuing the notice prescribed in Rule 22(1), if for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. Order 21, Rule 24 empowers the Court to issue its process for the execution of the decree only after having satisfied about taking of all the preliminary measures required to be taken under the relevant rules and unless it sees cause to the contrary. Further, as per Order 21, Rule 37, where an application is for execution of a decree for the, payment of money by the arrest and detention in civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing 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. The said Rule 37 clearly mandates that in respect of an application for the execution of a decree for payment of money by arrest and detention in civil prison of a judgment-debtor, the Court is instead of issuing warrant of arrest straight away to issue a notice calling upon him to appear before the Court and show cause as to why he should not be committed to the civil prison. As per proviso to the said Rule 37 the said notice shall not be necessary if the Court is satisfied by an 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 limit's of the jurisdiction of the Court. Under Rule 37(2), where appearance is riot made in obedience to the notice, the Court shall if the decree-holder so requires, issue a warrant for arrest of the judgment debtor. Under Order 21, Rule 39(1), no judgment debtor shall be arrested in execution of a decree unless and until the decree-holder pays into Court such sum as the Judge thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the Court. 8. In the present case, the decree holder applied in writing on 25-8-2009 for execution of the decree dated 5-10-2007 passed in his favour in MS No. 2 of 2007. The mode of execution specified in the application was by arrest and detention in the civil prison and/or by attachment and sale of movable property and immovable property of the judgment debtor for realisation of the decretal amount of Rs. 2 lakhs. Since one of the modes specified in the said application for execution of the decree was arrest and detention in the civil prison of the judgment-debtor as per mandate of Order 21, Rule 11A, the application should have stated or been accompanied by an affidavit stating the grounds on which the arrest was applied for. On perusal of the application as well as the affidavit accompanying with it, it is ascertained that neither in the application nor in the said affidavit, the grounds on which the arrest was applied for were mentioned. The decree-holder ought to have stated clearly either in his application or in his affidavit the grounds on which arrest was applied for. Considering the importance of the liberty of a person and having regards to the provisions of Section 51 as well as Order 21 Rule37 of the CPC, the grounds required to be stated as per provisions of Order 21, Rule 11A must be to satisfy the executing Court about the need for proceeding with the execution of the decree by way of arrest and detention of the judgment-debtor in civil prison. There is no dispute that no such ground was stated either in the application or in the said affidavit. Further, though the application for execution was also by way of attachment and sale of movable and immovable properties of the judgment-debtor, it was not specified in the application if the movable property of the judgment-debtor sought to be attached and sold was in his possession or not. As per provisions of Order 21, Rule 12, if the movable property sought to be attached was not in possession of the judgment-debtor the decree-holder should have annexed to the application an inventory containing a reasonably accurate description of the property to be attached. However, learned Civil Judge (Sr. Divn.) passed the impugned orders for attachment of movable property of the judgment debtor on the date of filing the application without ascertaining from the decree-holder formally if the property was in possession of the judgment-debtor or not. Records do not disclose as to why the impugned order was passed straight away or hastily on the date of filing the application without ascertaining the essential particulars for enabling the Court to proceed with the execution case properly. In respect of immovable property of the judgment-debtor sought to be attached and sold also, the none of the particulars required to be given under Order 21, Rule 13 was given in the said application. In the above facts and circumstances, the learned Civil Judge (Sr. Divn.) ought to have proceeded under Order 21, Rule 17. No reason was given as to why the learned Civil Judge (Sr. Divn.) did not proceed under Order 21, Rule 17 for doing justice to the parties in accordance with the law. The learned civil Judge (Sr. Divn.) ought to have exercised due care and attention. 9. There is nothing in the record to show as to why simultaneous execution against the person and property of the judgment-debtor was ordered by passing the impugned orders. Since Order 21, Rule21 gives discretion to the executing Court to refuse execution of the same time against the person and property of the judgment debtor, the learned Civil Judge (Sr. Divn.) ought to have considered judiciously about the necessity of ordering the simultaneous execution. While considering provisions of Order 21, Rule 30 of the CPC, the learned Civil Judge (Sr. Divn.) ought to have considered judiciously about the necessity of ordering the simultaneous execution. While considering provisions of Order 21, Rule 30 of the CPC, the learned Civil Judge (Sr. Divn.) ought to have noted that the said provisions gave him discretion and he should not have completely ignored the provisions of Order 21, Rule 21. In the absence of anything to show that the learned Civil Judge (Sr. Divn.) exercised his discretion judicially as regard the said simultaneous execution by taking into consideration of all the relevant provisions, one may reasonably conclude that the learned Civil Judge (Sr. Divn.) acted arbitrarily and without due application of his mind regarding the matter. In my opinion, the learned Civil Judge (Sr. Divn.) proceeded mechanically in respect of the said application for execution by passing the impugned orders for arrest and attachment of movable property of the judgment-debtor straight away on the very day of filing the application ignoring the provisions of Order 21, Rule 24(1)completely. 10. There is no dispute that by passing the impugned orders for issuance of warrant of arrest as against the judgment-debtor straight away on the very day on which the application for execution was filed without issuing any show cause notice and without recording any reason fordoing so, the learned Civil Judge (Sr. Divn.) violated the provisions of Section 51, Order 21,Rule 37 of the CPC. The said warrant of arrest was not issued on account of failure on the part of the judgment-debtor to appear in compliance of a notice issued by the executing Court. It was issued for arrest and detention of the judgment-debtor by way of execution of the decree on the basis of the application of the decree-holder. In that situation, the learned Civil Judge (Sr. Divn.) ought to have complied with Order 21, Rule 39(1) also but that provision was not complied with. Moreover while taking into account the provisions of Order 21 Rule 22 at the time of passing the impugned order dated 25-8-2009, the learned Civil Judge (Sr. In that situation, the learned Civil Judge (Sr. Divn.) ought to have complied with Order 21, Rule 39(1) also but that provision was not complied with. Moreover while taking into account the provisions of Order 21 Rule 22 at the time of passing the impugned order dated 25-8-2009, the learned Civil Judge (Sr. Divn.) ought to have noted that Order 21, Rule 22 is a general provision regarding issuance of notice and that proviso to Section 51 and Order 21 Rule 37 are special provisions governing execution by detention in prison and as such the proviso to Section 51 and Order 21 Rule 37 should have been strictly complied with irrespective of fact whether the said application was filed within two years of the date of the decree or not. By not giving overriding effect to the proviso to Section 51 and Order 21, Rule 37, the learned Civil Judge (Sr. Divn.) proceeded illegally. 11. Apart from the finding about non-compliance with and violation of the relevant provisions of the CPC on the part of the learned Civil Judge (Sr. Divn.) in passing the impugned orders, he acted unfairly, unjustly and arbitrarily, while dealing with the said application for execution by issuing arrest of warrant straight away. As per decision of the Hon'ble Apex Court in Jolly George Varghese (supra) no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. The Hon'ble Apex Court held in the above case to the effect that the procedure adopted by the authority issuing the warrant of arrest for arrest and detention in execution of a decree should be fair and reasonable. At paras 9, 10, 11 and 12 of the above judgment, the Hon'ble Apex Court held: 9. We concur with the Law Commission in its construction of Section 51, C.P.C. It follows that quondam 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. Equally meaningful is the import of Article 21 of the Constitution in the context of imprisonment for non-payment of debts. The high value 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 (1978) 1 248 : AIR 1978 SC 597 case as developed further in Sunil Batra v. Delhi Administration (1978) 4 SCC 949 : AIR 1980 SC 1579 , Sita Ram v. State of U.P. (1979) 2 SCR 1085 : AIR 1979 SC 745 and Sunil Batra v. Delhi Administration W.P. No. 1009 of 1979 decided on December 20, 1979, 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 Article21 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 inferable 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 21cannot strike down the provision, as now interpreted. 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. 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. 12. The question may squarely arise some day as to whether the proviso to Section 51 read with Order 21, Rule 37 is in excess of the Constitutional mandate in Article 21 and bad in part. In the present case since we are remitting the matter for reconsideration, the stage has not yet arisen for us to go into the vires that is why we are desisting from that essay. 12. The above said view of the Hon'ble Apex Court has not been changed by any subsequent decision. In Ram Narayan Agarwal (supra), the Hon'ble Apex Court expressed doubt about the applicability of the decision of Jolly George Varghese (supra) in cases involving public dues payable under a statute. However, the view expressed in respect of a case governed by Section 51 of the C.P.C., in Jolly George Varghese (supra) was affirmed and reiterated in Ram Narayan Agarwal (supra). The Hon'ble Apex Court observed at the last portion of para No. 7 page 283 ( (1983) 4 SCC 276 ): ...In so far as the decision of this Court in the case of Jolly George Varghese (supra) is concerned, it may be noted that it was a case governed by Section51 of the Code of Civil Procedure, 1908. There is however no doubt as observed in that case that the procedure adopted by the authority issuing the warrant of arrest should be fair and reasonable. But the Court left open the question whether Section 51 of the Code of Civil Procedure was unconstitutional or not. There is however no doubt as observed in that case that the procedure adopted by the authority issuing the warrant of arrest should be fair and reasonable. But the Court left open the question whether Section 51 of the Code of Civil Procedure was unconstitutional or not. Having regards to the above view of the Hon'ble Apex Court also, I am of the opinion that by issuing the warrant of arrest as against the judgment debtor straightway merely on the basis of the application of the decree holder for execution of the decree inter alia by way of arrest and detention of the judgment debtor, without complying with and in violation of provisions of Section 51 Order 21, Rule 37 and other relevant provisions of CPC, the learned Civil Judge (Sr. Divn.) acted illegally, beyond his jurisdiction, unfairly and arbitrarily and thereby causing grave injustice to the judgment debtor. 13. So far as the supervisory jurisdiction of the High Court under Article 227 of the Constitution is concerned, it is well settled on the basis of various decisions of the Hon'ble Apex Court including Waryam Singh and Anr. v. Amarnath and Anr. AIR 1954 SC 215 ; T.C. Basappa v. T. Nagappa and Anr. AIR 1954 SC 440 ; Surya Dev Rai v. Ram Chander Rai and Ors. (2003) 6 SCC 675 : AIR 2003 SC 3044 ; Radhey Shyam Gupta v. Punjab National Bank and Anr. Radhey Shyam and Anr. v. Chhabi Nath and Ors. (2009) 5 SCC 616 : AIR 2009 SCW 4006 that it can be exercised for keeping subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby the High Court may step into exercise its supervisory jurisdiction. In the present case, because of not proceeding in accordance with the relevant provisions of law a grave injustice or gross violation of justice has been occasioned. The learned Civil Judge (Sr. Divn.) failed to exercise his jurisdiction in a manner permitted by law and thereby grave injustice has been caused to the judgment debtor. 14. In the present case, because of not proceeding in accordance with the relevant provisions of law a grave injustice or gross violation of justice has been occasioned. The learned Civil Judge (Sr. Divn.) failed to exercise his jurisdiction in a manner permitted by law and thereby grave injustice has been caused to the judgment debtor. 14. In the result, the impugned orders are hereby interfered with and they are hereby quashed. The learned Civil Judge (Sr. Divn.), Kailashahar, North Tripura is to proceed with the Execution case afresh in accordance with law. 15. This revision is allowed and it stands disposed of. No order as to costs. 16. Send the lower Court records back to the concerned Court of the learned Civil Judge (Sr. Divn.) Kailashahar, North Tripura with a copy of this order for proceeding with the execution case afresh in accordance with law and in the light of this judgment and order as soon as possible.