Andhra HC (Pre-Telangana)
K. Harikrishna vs Dr. L. Raghunatha Rao And Ors. on 21 June, 2004
Equivalent citations: AIR2004AP518, 2004(4)ALD463, 2004(5)ALT52, I(2005)BC310, AIR 2004 ANDHRA PRADESH 518, (2005) 1 BANKCAS 310, (2004) 4 ANDHLD 463, (2004) 5 ANDH LT 52
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The judgment-debtor in E.P. No. 29 of 2002, on the file of V Senior Civil Judge, City Civil Court, Hyderabad, filed this revision, aggrieved by the order dated 20-11-2002, passed by that Court, directing his committal to civil prison.
2. The respondent filed O.S. No. 408 of 1987 in the Court of V Senior Civil Judge, City Civil Court, Hyderabad, for recovery of certain amount against the petitioner, his mother and sister. The suit was decreed on 8-7-1994, for a sum of Rs. 2,39,626. Since the decretal amount was not paid, the respondent filed E.P. No. 29 of 2002, seeking arrest of the petitioner under Rule 37 of Order 21 C.P.C. Through the order under revision, the executing Court directed the committal of the petitioner to civil prison.
3. Learned Counsel for the petitioner-Sri R. Raghunandan Rao, submits that the respondent has misused the process of Court, by straightaway filing an application under Rule 37 of Order 21 C.P.C., seeking arrest of the petitioner. He contends that the executing Court did not follow the procedure prescribed under Section 51 and Order 21 of C.P.C., before committal of the petitioner to civil prison. Placing reliance on the judgment of the Supreme Court in Jolly George Varghese v. Bank of Cochin, , and the judgment of this Court in Kasi Subbaiah Mudali v. Kasi Veeraswamy Mudali, , learned Counsel submits that the failure of the executing Court to follow the procedure renders the order under revision ineffective ; and liable to be set aside.
4. Sri P.V. Narayana Rao, learned Counsel for the respondent, on the other hand, submits that it is only after the petitioner expressed his inability to pay the decretal amount, after appearing before the executing Court, that the order under revision was passed and no exception can be taken to it.
5. The short question that falls for consideration in this revision is, as to whether the executing Court followed the procedure prescribed in the C.P.C., before ordering the committal of the petitioner to civil prison. The fact that there existed a decree against the petitioner and that he failed to discharge the liability under the decree, are not in dispute.
6. Section 51 and Order 21, Rule 37 C.P.C., provide for arrest of a judgment-debtor, in the event of his failure to discharge the obligation, despite possessing adequate means. The relevant provisions were challenged before the Supreme Court as being violative of Article 21 of the Constitution of India and Article 11 of International Covenant on Civil and Political Rights. While the former prohibits deprivation of life or personal liberty, except in accordance with procedure prescribed by law, the latter mandates that no one shall be imprisoned, merely on the ground of his inability to fulfil contractual obligations. In Jolly George Varghese v. Bank of Cochin (supra), after taking into account the relevant provisions of the Constitution of India, Convention, and C.P.C., this Court held that since the protection accorded under Section 51, and various rules under Order 21, is adequate, they cannot be said to be unconstitutional. It is for this reason that any step taken in the matter of arrest of a judgment debtor for his failure to pay the decretal amount should strictly conform to the prescribed procedure.
7. In Kasi Subbaiah Mudali v. Kasi Veeraswamy Mudali, (supra), this Court had an occasion to delve into the procedure prescribed under Order 21, Rule 37 C.P.C., and the importance of various steps provided therein, in the matter of arrest. It was held inter alia as under:
"Para-7. A plain reading of Rule 37 would show that it contemplates 3 situations viz.,
(a) The executing Court shall issue notice calling upon the judgment-debtor to appear before the Court on a date to be specified and show-cause as to why he should not be committed to civil prison. (Rule 37(1)).
(b) The Court can straightaway issue warrant of arrest of the judgment-debtor in case it is satisfied that the delay in issuance of notice under Rule 37 (1) would enable the judgment-debtor to abscond from or leave the local limits of the jurisdiction of the Court, (proviso to Rule 37(1)).
(c) The Court can issue warrant of arrest in case the judgment debtor fails to appear even after the receipt of notice issued under Rule 37(1). (Rule 37(2)).
Para-8. Further steps to be taken after the appearance of the judgment-debtor either voluntarily or on being brought before the Court after arrest are provided under Rule 40.
Para-9, According to this Rule, once the judgment-debtor appears before the Court in obedience to the notice or, brought before it on being arrested, the Court shall proceed to hear the decree-holder and take all evidence in the presence of the judgment-debtor. The judgment-debtor shall be given an opportunity of showing cause why he should not be committed to civil prison. Rule 40 contemplates almost an uninterrupted enquiry in the matter. That is the reason why it provides for detention of the judgment-debtor in the custody of an officer of the Court or releasing on furnishing security pending conclusion of the enquiry under Sub-rule (1). Any order of arrest to be made after conclusion of the enquiry under Sub-rule (1) of Rule 40, is once again subject to Section 51 C.P.C."
8. The consequences of any deviation from the procedure were explained in para 14, as under:
Para-14. Arresting of the judgment-debtor and sending him to civil prison is a matter touching the personal liberty, even if it is a step in a civil proceedings. Notwithstanding the difference as to the cause of deprivation of the liberty of the person, C.P.C. ensures the proper protection of the personal liberty. That is why several precautions are provided, before the liberty of a person deprived. Rule 40, in categorical terms insists that when a person appears before the Court in response to a notice or, is before the Court, on having been arrested in pursuance of a warrant, the Court shall examine the decree-holder in the presence of the judgment-debtor. The decree-holder will be placed under obligation to prove his contention in respect of the plea raised by him in the execution petition. Normally, in execution proceedings otherwise than through arrest, there is no burden cast upon the decree-holder to prove any other fact. Since the liberty of a citizen is involved, law places a further obligation upon the decree-holder to prove certain facts as contemplated under Rule 40(1), that too, in the presence of a judgment-debtor. The other provisions contained in Rule 40 as well as the provisions of Sections 51 and 55 of the C.P.C. add strength to these provisions. In a way, those provions, in their cumulative effect, ascribe an element of criminal trial, to the proceedings under Rule 11A of Order 21 of C.P.C."
9. Learned Counsel for the respondent does not dispute that the said procedure ought to have been followed before the petitioner were to have been committed to civil prison. The order under revision discloses that not a single step, worth its name, was followed, before the petitioner was directed to be sent to civil prison. The entire order reads as under:
"The Ch. Ravindra Babu filed Vakalath. The judgment debtor No. 2 who brought Rule 37 warrant being ordered judgment debtor request time for payment, same is rejected, judgment debtor 2 is committed to civil prison till 3.12.2002 on deposit of subsistence allowance."
10. When each and every step contemplated under Section 51 and Order 21, CPC were held to be mandatory, and when the liberty of the petitioner is involved, the executing Court ought to have exhibited care and caution to ensure that each step is followed scrupulously. Even the fundamentals of the said provisions were not followed. Since the order under revision discloses that there was a clear deviation from the prescribed procedure, it cannot be sustained. The same is accordingly set aside.
11. The matter is remanded to the executing Court for fresh consideration and disposal, strictly in accordance with the procedure prescribed under Section 51 and Order 21 of CPC as explained by this Court in the judgment referred to above.
12. The CRP is accordingly allowed. No costs.