Andhra HC (Pre-Telangana)
Aluru Venkata Rao vs Kodali Venkata Sri Krishna Jaganmohana ... on 17 October, 1994
Equivalent citations: 1994(3)ALT538
ORDER B.K. Somasekhara, J.
1. The order of the learned District Munsif (Sri P. Laxminarayana), Nuzvid in E.P. No. 12/91 (O.S. No. 244/89) dated 16-6-1994 is challenged in this revision petition. The petitioner is the Judgment-debtor in E.P. 12/91 and respondent is the Decree-holder. The decree-holder was executing the decree obtained by him as against the petitioner. The respondent sought the assistance of the Court to arrest and detain the petitioner in civil prison till he paid the decretal amount. The petitioner resisted the execution petition pleading mat he had no income and that he was unable to maintain himself and his family members with the meagre income he was getting. He also undertook to clear off tile decretal amount in two years. The learned Munsif after hearing both the sides and on the basis of the material available before him came to the conclusion that there was no merit in the resistence of the petitioner and ordered issue of arrest warrant to keep him in civil prison.
2. The learned Advocate for the petitioner has contended that the impugned order passed by the learned Munsif is illegal and unenforceable. He has pointed out Section 51(b) of C.P.C. in support of his contention that when the petitioner as a judgment-debtor raised a plea that he had no means to pay or that he had no capacity to pay, the Court was bound to hold an enquiry and give a finding that the conditions laid down in proviso toSection51 of C.P.C. had been fufilled to direct the arrest of the petitioner and in the absence to do so, the result is that the order is vitiated. The learned Advocate for the respondent has contended that in effect and in spirit, the learned Munsif has complied with the legal implications stated above, since the petitioner is admittedly, a lecturer having means to pay and since the petitioner undertook to clear the dues under the decree and therefore, there is no infirmity either legal or otherwise, in the impugned order.
3. On a careful examination of the legal implications of Section 51(b) and order 21 Rules37and 40 of C.P.C. this Court is not convinced that the impugned order passed by the learned Munsif can be supported. It is passed in utter ignorance i.e., in contempt of settled law and precedents of the Supreme Court in Jolly George Varghese v. The Bank of Cochin, . our own High Court in Suravampu Putrayya v. Maddukuri Veerraju, 1964 Vol.18 An.W.R. 38 (D.B.) R.V.J. Sastry v. Bank of India, 1978 (2) Vol.38 ALT 335 Sikile Moses v. Koturi Seeta Ram Das, Kerala High Court in Kesava Pillai v. Ousephjoseph, . and K.B. Md. Ibrahim v. State Bank of Travancore, Trivendrum, AIR 1964 Mad. 223 and authoritative commentaries of C.P.C. by A.N. Sahe (pages 211 and 212) and Mulla (pages 1454 to 1461 Vol.11 in XIV Edn.)
4. The gist of the law so settled may be succinctly and briefly noted: The relevant provisions in this regard are intended to protect the liberty and freedom of the judgment-debtor and therefore, the Code considers them to be of paramount importance. They are mandatory and violation of which invariably results in vitiating the consequential order. A show-cause-notice to the judgment-debtor as to why he should not be committed to civil prison under Order 21 Rules 37 and 51(sic. 40) of C.P.C. is mandatory. The Court is obliged to hold an inquiry and record a finding that the judgment-debtor has means to pay and has refused or neglected to pay the decretal amount,and such a finding should be supported by reasons. Such an inquiry should not be confined only to the stage of the date of decree, date of the execution petition or the date of the show-cause-notice or the inquiry. It should be at the relevant time when the Court gives a finding as above. The meaning and the scope of means to pay is to be found in Jolly George Varghees's case, as follows:
".... The words which hurt are 'or has had since the date of the decree, the means to pay the amount of the decree'. This implies, 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 o if ae detained 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 the Covenant) and Article21 (of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past 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 of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtors's other pressing needs and straitened circumstances will play prominently. We would have, by this construction sauced law with justice, harmonised Section 51 with the Covenant and the Constitution."
5. The dictionary meaning of "means" as a money resource or wealth of an individual (page 735 right column of the Concise Oxford Dictionary New Edn. reprinted 1992) is too general expression and the word "means" occurring in Section 51 of C.P.C. can only mean realisable assets viz., sufficient assets from out of which the necessary monies can be realised to pay up the decree amount. Therefore, the mere occupation of the judgment-debtor and its potential expected income is not decisive of the means to pay. The pertinence of the intent may not be lost if the expression of the means to pay can be a synonym to capacity to pay.
6. Since the law contemplates a show-cause-notice to the judgment-debtor as to why he should not be arrested and committed to civil prison, it cannot be construed as the law of evidence imposing burden of proof of means to pay on the judgment debtor. Read in the context of the loss of liberty if the money decree is not satisfied by a judgment debtor, the show-cause-notice is only meant to be an opportunity to explain the reasons and the circumstances under which he is unable to satisfy the money decree inasmuch as to satisfy the Court as to the consequences he may suffer in case of incarceration, perhaps operating upon the members of the family inasmuch as the dependents of the judgment debtor also. Such an inference is possible from Jolly George Varghees's case (1 supra). The initial burden of proving that the judgment debtor has means to pay the amount of the decree or some substantial part thereof and that he is refusing or neglecting to pay the same, would be on the decree-holder in view of the composite effect of Sections 101 and 102 of the Evidence Act, since the decree-holder wants the Court to give a decision or judgment of the liability of the judgment debtor to pay the decretal amount and secondly the decree-holder would fail on that question if no evidence at all were.given by either side. If the decree-holder is able to produce some material or evidence regarding the source or means of the judgment-debtor that it may be normally sufficient to pay the decretal amount, including the status, occupation and the assets; then whether such means or source etc., are not sufficient to pay the decretal amount being a fact especially within the knowledge of the judgment-debtor, the burden of proving that fact would be shifted to the judgment-debtor in view of Section 106 of the Evidence Act. In this case, the learned Munsif appears to have gone by certain inferences based on the admitted facts that the judgment-debtor is a Lecturer and that he undertook to pay the amount within two years, to think that he had means to pay, but he is wilfully avoiding to satisfy the decree. In Kesava Pillai's case (5 supra) it is emphatically held that the offer by the judgment-debtor to pay any instalments does not necessarily mean his means to pay.
7. Thus the order of the learned Munsif which is passed in disregard to such settled legal principles becomes vitiated and deserves to be set aside. Since an inquiry is contemplated mandatorily by the learned Munsif in the light of the observations made above, the matter should go back to the trial Court for disposal according to law.
8. The petition is allowed. The order of the learned Munsif is set aside. The matter is remitted back to the executing Court for disposal according to law and in tine light of the observations made above. The learned Munsif shall give opportunities to both the sides to produce their evidence and also to address arguments. The matter shall be disposed of within two months from the date of receipt of this order. The respondent shall be at liberty to withdraw any amount which is deposited by the petitioner in the execution proceedings or in the original proceedings towards the decretal amount. The parries shall bear their respective costs in these proceedings. No costs.