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2012 DIGILAW 75 (MAD)

Senthil Kumar v. K. M. N. Surendran

2012-01-04

T.S.SIVAGNANAM

body2012
Judgment :- 1. This Revision filed under Section 115 of the Civil Procedure Code, is directed against the order made in E.P. No.92 of 2004 is A.C. No.5 of 2000, dated 3.9.2005 on the file of IV Additional District Munsif, Coimbatore. 2. The Respondent herein filed the Execution Petition under Order 21, Rule 37, C.P.C. for arrest and detention of the Petitioners to recover the decree amount in Arbitration Case No. 5 of 2000, awarded, by decree dated 26.8.2000. 3. The Petitioners resisted the Execution Petition contending that the Registrar of Chits without conducting any enquiry and without affording any opportunity, passed the decree. It is further contended the after the decree was passed, the Respondent gave the Title Deed and Promisory Note signed by the Petitioner and his wife to one Mr. Palanisamy, who has filed a Suit for recovery of a sum of Rs.10,00,000/- by using the blank signed papers and the said Suit is pending and at this stage, the Respondent has filed the Execution Petition only with an intention to harass the Petitioners. The Executing Court, by order dated 30.9.2005, directed the arrest and detention of the Petitioners solely on the ground that the First Petitioner is receiving monthly pension and he has not been declared as an insolvent and unless an order of arrest is passed, the Petitioner would not pay the decree amount and therefore, ordered arrest. 4. In support of the contention, the learned Counsel appearing for the Petitioner placed reliance on the decision of the Honourable Supreme Court in Jolly George Varghese and another versus The Bank of Cochin, AIR 1999 SC 470 and Ram Narayan Agarwal, etc. versus State of U.P. and others, 1983 (4) SCC 276 ; AIR 1984 SC 1213 . 5. Heard the learned Counsel appearing for the Petitioners and in spite of service of notice, there is no appearance on behalf of the Respondents. 6. The only legal issue which arises for consideration is whether the procedure required to be followed by the Executing Court while ordering arrest and detention of the judgment-debtors was followed by the Executing Court in the instant case. This Court had an occasion to consider the procedure required to be followed while considering an Application under Order 21, Rule 37(1), CPC in M.M. Saleem versus R. Praveen Kumar Reddy, 2010(5) CTC 469 and held as follows: “5. This Court had an occasion to consider the procedure required to be followed while considering an Application under Order 21, Rule 37(1), CPC in M.M. Saleem versus R. Praveen Kumar Reddy, 2010(5) CTC 469 and held as follows: “5. I have heard the learned Counsel for the parties and given my anxious consideration to the issue raised in the present Revision. Order 21, Rule 37(1) provides that where an Application is for execution of a money decree by the arrest and detention in Civil prison, the Court instead of issuing a warrant of arrest to the judgment-debtor, 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 civil prison. In terms of Proviso to Rule 37(1) 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. Rule 40 states, when a judgment-debtor appears before the Court in obedience to a notice issued under Rule 37, or is brought before the Court after being arrested in execution of a money decree, Court shall proceed to hear the decree holder and take all such evidence and then give an opportunity to the judgment-debtor to show cause why he should not be committed to the Civil prison. Section 51 of the Code states that before an order or arrest and detention in prison is made, the Court should give an opportunity to the judgment-debtor for showing cause as to why he should not be committed to prison for reasons to be recorded in writing is satisfied of any of the requirements prescribed in clauses (a), (b) or (c) of the proviso. This Court in Namachivaya Mudaliar versus Manickavelu and Co., AIR 1972 Mad.292, held that after reading Section 51 of Rules 37 & 40 of Order 21, CPC, it is clear that the Proviso to Section 51 is applicable and the Court is bound to record in writing its specification of one of the conditions prescribed in the Section, only when it commits a person to prison and not when issuing a warrant of arrest. This decision was referred to by the Division Bench in P.G. Ranganatha Padayachi versus Mayavaram Financial Corporation, AIR 1974 Mad.1, and after discussing the law on the subject held thus: “10.) To sum up therefore, the order of arrest passed by the Executing Court without giving a finding regarding the means of the judgment –debtor to pay the decree amount is not one without judgment as the order of arrest is only under Order 21, Rule 37(2). Needless to say that the Executing Court should necessarily go into the question of means of the judgment – debtor to pay the decree amount after the latter is arrested has to be committed to prison or not in execution of the decree .” 6. The above referred decision in the case of Namachivaya Mudaliar and P.G. Ranganatha Padayachi, were relied on by this Court in case of Chinnaraj and another, referred supra and this Court held that there is nothing in the Code, which compels the Court to give an opportunity to the judgment - debtor or the decree – holder to adduce evidence and record it as reasons in writing before even passing an order of arrest against the judgment- debtor. Though, the Executing Court referred to the decision of this Court in case of Chinnaraj and another, referred supra, the order passed by the Executing Court does not assign any reason that the Court is satisfied that there are prime facie material before the Court for proceeding under Order 21, Rule 37. This has to be culled out only from the order as the order has to speak for itself and every decision should be supported by reasons. The power under Rule 37 is not just an innocuous matter, as the decision whether to issue of warrant of arrest or to issue a show cause to the judgment – debtor as to why he should not be arrested are matters having an impact on human dignity. The honorable Supreme Court in Jolly George Varghese and another versus The Bank of Cochin, AIR 1980 SC 470 had observed how gruesome and obnoxious is the remedy of incarcerating a debtor for an unpaid debt under modern conditions and in the contest of human rights. The honorable Supreme Court in Jolly George Varghese and another versus The Bank of Cochin, AIR 1980 SC 470 had observed how gruesome and obnoxious is the remedy of incarcerating a debtor for an unpaid debt under modern conditions and in the contest of human rights. As observed earlier, perusal of the order passed by the Executing Court its clear that apart from referring to the decision of this Court in the case of Chinnaraj and another, referred supra, the Court has not recorded its satisfaction and mechanically proceeded to order arrest. It is relevant to note that in the Counter Affidavit, the Petitioners/judgment-debtor has specifically stated that the copy of passed by the Executing Court does not assign any reason that the Court is satisfied that there are prima facie material before the Court for proceeding under Order 21, Rule 37 This has to be culled out only from the order as the order ha to speak for itself and every decision should be supported by reasons. The power under Rule 37 is not just an innocuous matter, as the decision whether to issue of warrant of arrestor to issue a show cause to the judgment-debtor as to why he should not be arrested are matters having an impact on human dignity. The Honourable Supreme Court in Jolly George Varghese and another versus The Bank of Cochin, AIR 1980 SC 470 had observed how gruesome and abnoxious is the remedy of incarcerating a debtor for an unpaid debt under modern conditions and in the contest of human rights. As observed earlier, perusal of the order passed by the Executing Court its clear that apart from referring to the decision of this Court in the case of Chinnaraj and another, referred supra, the Court has not recorded its satisfaction and mechanically proceeded to order arrest. It is relevant to note that in the Counter Affidavit, The Petitioner/judgment-debtor has specifically stated that the copy of the means Affidavit filed along with the Execution Petition was not served. Therefore, even going by the language of Rule 37(1) of Order 21, the satisfaction of the Court is a sine qua non for issuing an order of arrest. The term “satisfied” used in the proviso cannot be held to be an empty expression especially, when the matter involves a human rights. Therefore, even going by the language of Rule 37(1) of Order 21, the satisfaction of the Court is a sine qua non for issuing an order of arrest. The term “satisfied” used in the proviso cannot be held to be an empty expression especially, when the matter involves a human rights. This satisfaction of the Court to invoke the power should find place in order and it should be apparent from the face of the record and therefore, it is necessary for the Court to record certain reasons as to why it is satisfied that the power under the Proviso to Rule 37(1) of Order 21, C.P.C. has been invoked. An order without reasons has been held to be an order in violation of the Principles of Natural Justice. This Court in K.AL.R.M. R.M. Alagappan versus Rajaguru & Co., 1985 (1) MLJ 331 , after referring to the judgments of the Honourable Supreme Court in Jolly George Varghese and another versus The Bank of Cochin, AIR 980 SC 470; Rama Narayan Agarwal versus State of U.P., 1983 (4) SCC 276 ; AIR 1984 SC 1213 , held thus: “6.) …In this case, nothing is found in the impugned order that the judgment-debtor is having funds of that he is purposely delaying to pay the decretal amount. Under these circumstances, I am of the view that the impugned order of the Executing Court, has to be set aside and it is accordingly set aside and this Civil Revision Petition is allowed.” 7. In the instant case, the Executing Court merely recorded the fact that the First Petitioner is receiving monthly pension and he has not been declared as an insolvent and unless an order of arrest is passed, the Petitioner would not pay the decree amount and therefore, ordered arrest. As noticed above, it is necessary that the satisfaction of the Court for issuing an order of arrest has to be recorded and such satisfaction should find place in the order and it should be apparent from the face of the record and it is necessary for the Executing Court to record as to why it is satisfied that the power under the Proviso to Rule 37(1) of Order 21, C.P.C. is invoked. 8. From a perusal of the order passed by the Executing Court, it is evident that these requirements have not been complied with. 8. From a perusal of the order passed by the Executing Court, it is evident that these requirements have not been complied with. Thus, this Court is constrained to interfere with the order passed by the Executing Court, which is required to be set aside and the matter to be remained for fresh consideration. 9. In the result, the Civil Revision Petition is allowed and the impugned order is set aside and the matter is remanded to the Executing Court for fresh consideration and the Executing Court is directed to hear and dispose of E.P.No. 92 of 2004 on merits and in accordance with law as indicated above, as expeditiously as possible, preferably with in a period of six months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is closed.