Andhra HC (Pre-Telangana)
E. Murugaiah And Anr. vs C. Ekambara Reddy on 18 October, 1995
Equivalent citations: 1996(2)ALT720
Author: K.B. Siddappa
Bench: K.B. Siddappa
ORDER K.B. Siddappa, J.
1. This revision is filed against the order passed in E.P.No. 13 of 1992 in O.S.No. 174 of 1989 on the file of the learned Additional Subordinate Judge, Chittoor. The learned Additional Subordinate Judge passed the impugned order of arrest of the judgment-debtor for non-payment of the decretal amount.
2. The learned counsel for the petitioner submitted that the petitioner herein is a small farmer and the lower Court should have given the benefit of Act. No. 7 of 1977. He also submitted that the requirements of Section 51 of the Code of Civil Procedure are not met to order for the arrest etc.
3. I see considerable force in the submission of the learned counsel. However the petitioner could not establish that he is a small farmer. The learned counsel (sic. Judge) has given cogent reasons for disbelieving the case of the petitioner herein on this aspect and the finding does not warrant interference. Further the finding that the petitioner is having sufficient means to pay the debt is also based upon acceptable evidence. Still the requirements of Section 51 of the Code of Civil Procedure are not made out is this case. In this context it is useful to reproduce the relevant provisions of Section 51 of the Code of Civil Procedure, which reads as follows:
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) xx xx xx
(b) xx xx xx
(c) by arrest and detention in person; for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that Section;
(d) xx xx xx
(e) xx xx xx 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-holder, 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 jurisdictiion 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 had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refused 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."
4. It is clear from the above provisions of law as to what are the requirements for enforcement of execution of a decree by ordering arrest. Admittedly there is no allegation in the petition that the judgment-debtor is likely to abscond. There is no allegation that the judgment-debtor dishonestly transferred or concealed etc., Further there is no allegation as required under Clause (b) to proviso to Section 51 of the Code of Civil Procedure that the judgment-debtor has means to pay the amount or some substantial part thereof and refuses or neglects to pay the same. The existence of circumstances in Clauses (a) to (c) to proviso to Section 51 is one of the conditions to govern the liability of the judgment-debtor for arrest and should be alleged in the petition for detention in civil prison and shall not be ordered as a matter of course but only on fulfilment of the conditions in the proviso. The salutary object of the proviso is to protect the indigent and honest debtors. Further the decree-holder must not only make allegation, but also lead evidence and establish prima facie in support of his application. The decree-holder must prove that the judgment-debtor refused or neglected to pay inspite of the request at any time as has been held in Paramananda v. Maheswa, 1960 ILR 33. Further it is the recognised practice in an appropriate case not to make committal order on the first application but to order instalments. This principle was laid down in Bare Foot v. Clarke, 1949 K.B. 97(CA). In Madhavan's case AIR 1964 Mad. 409 it was held that there is no impediment in the practice being adopted in suitable cases.
5.Personal liberty of an individual is more sacred. Such liberty cannot be taken away in a light hearted manner except under due process of law enshrined in Article 21 of the Constitution of India. The Court should be vigilant in safeguarding the liberty of an individual. The requirement of law which proposes to take away that liberty should be strictly followed.
6. In this case the learned District Munsif (sic. Subordinate Judge) considered only two points-whether the debtor is a small farmer and whether he has got means to pay the debt. There is no allegation that decree-holder demanded for payment of the decretal amount and the judgment debtor refused to pay the same. There is no issue and finding on this aspect. Certainly the requirement of proviso (b) to Section 51 of the Code of Civil Procedure is not made out in this case. Therefore the impugned order is liable to be set aside. Accordingly the impugned order is set aside and the revision is allowed, but, in the circumstances, without costs.
7. The lower Courts should think of execution of money decrees by ordering payment by instalments in suitable cases, if not in all cases, instead of ordering arrest etc., In the circumstances of this particular case, I direct the lower Court to permit the judgment-debtor to pay the decretal amount in suitable instalments.