Madras High Court
Mr. Tharmapitchai And Anr. vs A.C.A. Funds on 25 January, 1995
Equivalent citations: 1995(2)CTC20
ORDER N. Arumugham, J.
1. The unsustainable order passed by the learned principal District Munsif, Srivaikuntam, in Execution petition No. 29 of 1990 in O.S.No. 24 of 1985 is being canvassed in this revision by the revision petitioners, who are the respondents and defendants 2 and 3 before the court below for its want of legality, propriety and correctness.
2. The petitioners herein are the defendants 2 and 3 along with first defendant, who is not a party in the proceedings were sued by the respondent herein for the recovery of sum of Rs. 4,240/-with interest at the rate of 12 per per cent annum from 15.12.84 onwards based on a promissory note executed by them in favour of the respondent and the trial court, after the trial, has granted a decree in favour of the respondent herein in O.S. No. 24 of 1985 on 18.7.91. As the first defendant happened to be a police personnel working outside the jurisdiction of the executing court, who was the principal debtor and both the revision petitioners being the defendants 2 and 3 happened to be the guarantors for the suit loan and pursuant to the decree passed above referred execution was levied by the respondent herein before the executing court in E.P. No. 29 of 1990 in O.S. No. 24 of 1985 on the ground that the first petitioner herein is having both movable and immovable properties and earning adequate income and that the 2nd petitioner also was running a photo studio and having considerable income but failed to pay the decretal amount to the respondent herein. The execution was levied under Order 21 Rule 36 Civil Procedure Code praying for the arrest of the defendants 2 and 3, who are the revision petitioners herein. Both the revision petitioners resisted the execution petition by filing separate counters inter alia contending that they had no means at all at the time of execution to pay the decretal amount, that they were no-where employed to pay the amount and that, therefore, the execution levied against them cannot be sustained. The learned executing Judge, while considering the oral evidence adduced on behalf of the respective parties, but however, with no documentary evidence if I may say so briefly has held that the judgment-debtors Nos. 2 and 3 who are the revision petitioners herein, are bound to prove that they had no means to pay the decree amount wrongly and erroneously and placed the onus on them. On this ground alone, the impugned order under this revision is liable to be set aside.
3. For the purpose of appreciating the entire order passed by the learned executing judge, I have to extract Section 51 of the code of Civil Procedure, which runs as hereunder:-
"51 Power of Courts to enforce execution;- subject to such condition and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree-
(a) by delivery of any property specifically decreed;
(b) by attachment and 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.-
(b) 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 this property, or committed any other act of bad faith in relation to his property, or,
(b) that the judgment-debtors 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.
Explanation;- In the calculation of the means of the judgment-debtor for the purpose 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".
It is seen from the above that in an execution proceedings for a court of law to pass the order of arrest, attachment or otherwise for the relief moulded it should find out adequate reasoning to pass such an order in writing after arriving at its full satisfaction with regard to the means position of the judgment-debtor.
If that is so, then the onus is undoubtedly upon the decree- holder to prove that the Judgment-debtor had enough means and where with all to discharge the decree in whole or part, but even then they did not discharge. This would mean, unambiguously and undoubtedly mat the decree-holder who wants to levy the execution Order 21 Cr. P.C. must bring his case and relief against the judgment-debtor within the ambit of Section 51 of the Code of Civil procedure and the ingredients of which are the sine-qua-non for any executing court to mould the relief under Order 21 Rule 35 to 40 in executing the decree for the recovery of money. If not, for any reason or for the reason of want of evidence, it is undesirable for the executing court to order the arrest of the Judgment-Debtor.
4. The Supreme Court in Jolly George Verghese v. The Bank of Cochin has held as follows;-
"The words: or has had since the date of the decree the means to pay the amount of the decree" occurring in Section 51, C.P.C., may imply, if 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 obtained 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 International Covenant of Civil and Political Rights and Article 21 of the Constitution.
Where the judgment-debtor if once had the means to pay the debt but subsequently after the date of decree, has no such means or he has money on which there are other pressing claim; it is violative or Article 11 of the Covenant to arrest and confine him in jail so as to coerce him into payment. Section 51 of Civil Procedure Code embodies the same principle as that which is embodied in Article 11 of the Covenant.
The Covenant bans imprisonment merely for not discharging the decree debt., Unless there be some other vice or meansrea apart from failure to foot the decree, international law frowns on holding the debtor's person in civil prison as hostage by the Court.
The simple default to discharge the decree, is not enough. There must be some element of bad faith beyond mere indifference to pay some deliberate or recusant disposition in the cast 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 or refusal as demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor's other pressing needs and straitened circumstances will play prominently.
It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequently inability to meet his contractual liability is appalling. To be poor, in this land of poverty is no crime and recover debts by the procedure of putting one in prison is too flgrantly violative of Article 21 of Constitution unless there is some 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 inferrable from Article 11 of the Covenant and lethal blow of Article 21 of Constitution cannot strike down the provision of Section 51 C.P.C".
5. That apart it is well settled by now by the various judicial proncoucements that in an execution petition praying for the arrest of the judgment-debtor for the recovery of of the decretal amount on the ground that though they had enough funds and means to pay, have not paid, it was for the decree-holder to prove the means as well as adequacy of the means position of the judgment- debtor before ordering arrest as provided under Order 21 of the Code. If that is so, in the light of the foregoing reasonings given and for the legal ratios enunciated by the Apex Court, the very impugned order passed by the learned executing Judge entirely placing the burden upon the judgment-debtors to prove their means position is wholly unsustainable and cannot be allowed to sustain for any purpose and in this way the approach adopted by the learned executing court in an erroneous manner has thus been identified and consequently, the impugned order in this revision has become unsustainable.
6. In the result, for all the reasonings, given above, the revision succeeds and accordingly, it is allowed. The order passed by the learned executing court in E.P.No. 29 of 1990 in O.S. No. 24 of 1985 dated 18.7.91 is hereby set aside.
No costs.