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2014 DIGILAW 641 (MAD)

K. Vaidyanathan v. R. Dhanabackiam

2014-03-12

N.KIRUBAKARAN

body2014
Judgment : 1. The Judgment Debtor, who was slapped with an order to be arrested and detained in civil prison, is before this Court. 2. The petitioner herein suffered a money decree in O.S.No.96 of 2005 filed by the respondent, on 21.09.2007. Thereafter, the respondent filed an Execution Petition. Since the petitioner failed and neglected to pay the decree amount, in the Execution Petition, the respondent sought for arrest of the petitioner in civil prison for non-payment of decree amount. After contest, finding that the petitioner has got means, the Execution Court has passed an order to arrest the petitioner to be detained in civil prison. The said order is being challenged before this Court. 3. Heard Mr. P.Gopalan, learned counsel appearing for the petitioner, who would argue that though sufficient safeguards have been provided under Order 21, Rule 37 of Civil Procedure Code, the procedures contemplated under those provisions, have not been complied with. He would particularly point out that notice has to be issued necessarily before passing an order to arrest the Judgment-Debtor as per Order 21, Rule 37 of Civil Procedure Code. He would further submit that under Section 51 of C.P.C. the Execution Court is duty bound to give a finding that only on the particular circumstance namely, the Judgment-Debtor is trying to alienate the property or flee away from the jurisdiction the order of arrest can be passed. 4. The learned counsel for the petitioner would rely upon the Judgment of this Court in Arumugham v. Muthukumaraswami reported in [2014(1) MWN (Civil) 396] to stress the point that the Court should satisfy itself before passing the order of detention that the judgment-debtor is likely to abscond or leave local limits of jurisdiction of Courts or dishonestly transfer, conceal or remove any part of his property etc. 5. No doubt, arresting a person and detaining in prison towards discharge the civil obligation is a serious order. There is no dispute with regard to passing of money decree against the petitioner. Since the petitioner failed to pay the amount, an execution petition was filed and in the E.P., order of arrest was sought on the ground that the petitioner has got means and in spite of available of means, the petitioner is deliberately evading the payment. In the Execution Petition, notice was ordered to the petitioner. Since the petitioner failed to pay the amount, an execution petition was filed and in the E.P., order of arrest was sought on the ground that the petitioner has got means and in spite of available of means, the petitioner is deliberately evading the payment. In the Execution Petition, notice was ordered to the petitioner. The petitioner filed counter affidavit on 17.09.2010 and in fact, the respondent examined two witnesses and the petitioner examined four witnesses and as many as seven(7) exhibits on the side of the respondents and twelve (12) exhibits on the side of the petitioner were marked. The grievance of the petitioner is that the provision under Order 21, Rule 37 has not been complied with. 6. For the sake of clarity, it is appropriate to extract the Order 21, Rule 37 of C.P.C. 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. From the above, it is clear that notice is required to be given to the judgment-debtor under Order XXI, Rule 37 of C.P.C and in this case, it has been complied with. From the above, it is clear that notice is required to be given to the judgment-debtor under Order XXI, Rule 37 of C.P.C and in this case, it has been complied with. Therefore, there cannot be any grievance with regard to the compliance of Order 21, Rule 37 of C.P.C. The proviso to Order 21, Rule 37(1) of C.P.C would show that even such notice can be dispensed with in the Execution Petition, if the Court is satisfied that with the object or effect of obstructing or delaying the execution of the decree, the judgment debtor is likely to abscond or leave the local limits of the jurisdiction of the Court. Therefore, much discretion has been given to the Execution Court even to dispense with the notice contemplated under Order 21 Rule 37(1) of C.P.C. In any event, the said occasion did not arise, as the petitioner was already issued with notice. 7. With regard to the finding to be given by the Execution Court that the petitioner is likely to abscond and alienate or dispose of part or the entire property of the petitioner, the learned counsel appearing for the petitioner relied upon Section 51 of the Civil Procedure Code, which is extracted as below : Section 51. 7. With regard to the finding to be given by the Execution Court that the petitioner is likely to abscond and alienate or dispose of part or the entire property of the petitioner, the learned counsel appearing for the petitioner relied upon Section 51 of the Civil Procedure Code, which is extracted as below : Section 51. Powers of Court to enforce execution – 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- (a)by deliver of any property specifically decreed; (b)by attachment and sale or by sale without attachment of any property; (c)by arrest and detention in prison [for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that section]; (d)by appointing a receiver; or (e)in such other manner as the nature of the relief granted may require; 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 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. 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. (Emphasis supplied) His only contention is that only in the event of the petitioner leaving the jurisdiction or obstructing or delaying the execution or dishonestly transferring or removing any part of his property, the order of arrest can be passed. A perusal of Section 51 of C.P.C. especially (b) of the proviso to Section 51 would make it clear that if the judgment-debtor refuses or neglects to pay the sum, then the arrest warrant can be issued. In this case, there is a clear finding given by the Execution Court that the petitioner has got means and has not paid the money. 8. In paragraph No.15, trial Court has observed regarding the means of the petitioner, which is as follows : “TAMIL” The above said portion order would show that the petitioner is doing rice business by having a shop and he has constructed a new building and conducted houses warming ceremony and in spite of that, he refused to pay the amount. Therefore, there is a clear finding that he has got means and in spite of that, he failed and neglected to pay the amount. In other words, he refuses to pay the amount. 9. The learned counsel appearing for the petitioner relied upon the judgment reported in Arumugham v. Muthukumaraswami reported in [2014(1) MWN (Civil) 396]. Paragraph No.11 of the above said order is usefully extracted for better appreciation : 11. In other words, he refuses to pay the amount. 9. The learned counsel appearing for the petitioner relied upon the judgment reported in Arumugham v. Muthukumaraswami reported in [2014(1) MWN (Civil) 396]. Paragraph No.11 of the above said order is usefully extracted for better appreciation : 11. A conjoint reading of the above said provisions in the light of the fact that the arrest of a person involves making inroads into the personal liberty and human rights of a person, the Court should be satisfied before passing an order committing judgment-debtor to Civil Prison that he is likely to abscond or leave the local limits of the jurisdiction of the Court or he has dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property or that he refuses or neglects to pay the decree amount or the substantial part thereof despite having means to do so or that the decree is for payment of money by the judgment-debtor, who in a fiduciary capacity to account for the same. The aforesaid judgment only points out that the Court should be satisfied before passing the order committing judgment-debtor to civil prison, that he is likely to abscond or leave the local limits of the jurisdiction of the Court or he has dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property or that he refuses or neglects to pay the decree amount. The last clause of aforesaid conditions is applicable covering the petitioner's case. Therefore, the said judgment is not helping the petitioner. 10. In view of the above, the order passed by the trial Court cannot be found fault with. Accordingly, the Civil Revision Petition stands dismissed. No costs. Consequently, the connected Miscellaneous Petition is also closed.