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2011 DIGILAW 308 (PNJ)

Krishan Lal v. Krishna Devi

2011-01-25

SABINA

body2011
JUDGMENT Mrs. Sabina, J.: - The petitioner has filed this revision petition under Article 227 of the Constitution of India challenging the impugned order dated 6.12.2003 passed by the Additional Civil Judge (Sr.Divn.) Pehowa. 2. Plaintiff Krishna Devi filed a suit for recovery and a decree was passed in her favour by the Additional Civil Judge (Sr.Divn.), Pehowa dated 12.10.1999 for recovery of ‘ 1,80,000/- along with interest. The decree-holder filed an execution petition. Since the decree had not been satisfied an application was moved by respondent No.1 under Order 21 Rule 37 of the Code of Civil Procedure. The Executing Court framed issues in the said application. Vide impugned order dated 6.12.2003 the application was allowed and warrant of arrest of the petitioner was ordered to be issued. Hence, the present petition. 3. Learned counsel for the petitioner has submitted that the warrants of arrest could not be ordered to be issued against the petitioner merely because the petitioner was unable to pay the amount in question. The property of the petitioner had been auctioned and the decree had been partly satisfied. However, now the petitioner had no property or source of income to satisfy the decree. In support of his arguments, learned counsel for the petitioner has placed reliance on Jolly George Varghese and another vs. The Bank of Cochin AIR 1980 Supreme Court 470, wherein, it was held as under:- “10. Equally meaningful is the import of Article 21 of the Constitution in the context of imprisonment for nonpayment 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’s case (1978) 1 SCC 248 as developed further in Sunil Batra vs. Delhi Administration (1978) 4 SCC 494, Sita Ram vs. State of UP (1979) 2 SCR 1085 and Sunil Batra vs. Delhi Administration, W.P. No.1009 of 1979, D/-20-12- 79 (SC) 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. 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 Narayan (land of poverty) 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 wilful 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 CPC and the lethal blow of Article 21 cannot strike down the provision, as now interpreted. 11.The words which hurt are “or has bad 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 of 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 dishones disowning of the obligation under the decree. Here considerations of the debtor’s other pressing needs and straitened circumstances will pay prominently. We would have by this construction, sauced law with justice, harmonised Section 51 with the Covenant and the Constitution.” 4. Learned counsel for the respondent, on the other hand, has supported the impugned order. 5. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves dismissal. We would have by this construction, sauced law with justice, harmonised Section 51 with the Covenant and the Constitution.” 4. Learned counsel for the respondent, on the other hand, has supported the impugned order. 5. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves dismissal. Order 21 Rule 37 reads as under:- “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 decreeholder so requires, issue a warrant for the arrest of the judgment-debtor. 6. There is no quarrel with the proposition of law laid down by the Apex Court in the judgment relied upon by the learned counsel for the petitioner but the same fails to advance the case of the petitioner. 7. A perusal of the impugned order reveals that the judgment-debtors had sold the property during the pendency of the suit and even after the passing of the decree without disclosing to the Court or without seeking permission of the Court. The said act of the judgment-debtors has been rightly held to be an act of bad faith by the Executing Court. In these circumstances, the application filed by the decree-holder was liable to be allowed as the judgment-debtors had not been acting in good faith. The impugned order, thus, does not call for any interference by this Court. Accordingly, this petition is dismissed. ---------0.B.S.0------------