Andhra Pradesh High Court - Amravati
Rajeti Prabhakara Rao vs Mosa Satyavathi on 3 June, 2019
Author: U.Durga Prasad Rao
Bench: U.Durga Prasad Rao
HIGH COURT OF ANDHRA PRADESH MONDAY, THE THIRD DAY OF JUNE TWO THOUSAND AND NINETEEN PRESENT THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAQ SS: CHL REVISION PETITION NG: 7107 OF 2018 Petition under Article 227 of the Constitution of India aggrieved by the order dt.22.10.2018 in E.P.No.54 of 2017 In O.9.No0.274 of 2015 on the file of the Principal Junior Civil Judge, Rayamahendravaram, East Godavari District. Between: Rajeti Prabhakara Rao, S/o. Narsimhamurthy, Hindu, Aged about $2 years, R/o Konerupet, Morampudi Junction, Rajamahendravaram, East Godavari District. ..Petitioner/D Hr/Plaintff AND |. Mosa Satyavath:, W/o. Mosa Sarnuel, Hindu, Aged about 49 years, R/o Dr. No.4- 46, Goutham Nagar, D-Block, Hukumpeta, Rajamahendravaram. hm Miosa Samuel, S/o Not Known, Hindu, Aged about 52 years, R/o Dr. No. 4-46, Goutham Nagar, D-Block, Hukumpeta, Rajamahendravaram. (Ri and Re are merely nominal Parties against whom no relief was sought in the in EP No 54/2017 in O.5.No.274/2016 which is on the file of the Principal Junior Civil dudge- at Raiamahendravaram } to Mosa Srinu, S/o. Mosa Samuel, Hindu, Aged about 28 years, R/o Dr. No.4-46, Goutham Nagar, D-Block, Hukumpeta, Rajamahendravaram. 4. Mosa Prasanna, S/o. Mosa Samuel, Hindu, Aged about 26 years, R/o Dr. No.4- 45, Goutham Nagar, D-Block, Hukurnpeta, Rajamahendravaram. ..Respoandents/J. Drs/Defendants (NOTE: As R3 and R4 are Proper Parties, in the Case, Process is made for them only.) For the Petitioner: SRI. A. RAVINDRA BABU For the Respondents 1 to 4: None Appeared The Court made the following: QRDER HONOURABLE SRI IU SPICE UDURGA PRASAD RAO Civil Revision Petition No. 7107 of 2018 ORDER:
The challenge in the CUR.P. at the instance of the decree holder iS iO a the order dated 23 TO2018 in E.P.No.d4 of 2017 in O.S.No0.274 of 2016 passed by the jlearned Principal Junior Civil Judge, Rajamahendravaram dismissing the petition filed by him under Order XX Rule 37 CPC seeking the Court to issue arrest warrant against the judgment debtors 3 & 4 and commit them to civil prison for r alization of the amount.
2 The factual matrix of the case is thus:
we The dectee holder fied O.S.No0.274 of 2016 against the judgment debtors/defendants | to 4 for recayery of Rs.55,520/- on the strenaih of a promissory note and the defendants remained ex parte and said surl was ultimately decreed tn favour of the plaintiif on 40),.07.2016. Thereupon the D.Hr filed E.P.No.54 of 2017 wiih prayer to issue notice under Order XAT Rule 37 CPC to the judgment debtors 3 & 4 to comply the decree directions and on their faihire to commit them to civil prison, In the affidavit filed in support of E.P, he gtated that the judgment debtors 2 to 4 are eking livelihood by doing works and getting salary of Rs.25,000/- per month each and in spite of having sufficient means and capacity to discharge the decretal debt in one lumpsum, they intentionally avoided to do so. The docket order 'n aforesaid E.P., a certified copy of whieh is fled herewith, shows that upon receiving notice JDrs 3 & 4 appeared in person ang also through their counsel. The matter underwent several adjournments for filing their counter fence, and ultimately on 22.06.2018 counsel for J.Drs reported no counter.
the execution Court posted the matter to 17.07.2018 for appearance af J.Drs 3 & 4, but they remained absent and hence, the Court set them ex parte and posted the matter for evidence of D.fr to prove the means of J.Drs to hOQ.0S.207T8. Ht appears the D.Hr requested the Court to issue arrest warrant against the J-Drs 3 & 4 in terms of Rule 37(2) CPC for th ey failed to appear in obedience to the arder of the Court. However, the Court refused to issue drrest warrant on the ground that no material was produced by the D.Hr to show that the J.Drs were working and getting any income and except mere pleading of the D.Hr there was no other material on record sh rowing that the Drs were having income and thus, the D.Er failed to establish the means of the J.Drs to pay the decree debt. On those obsery 'ALLONS, the E.PL was dismissed an 22.10.2018.
Henee, the Civil Revision Pettian.
3, Notice in C.R.P. was directed against the judement debtors 3 & 4, but there Was no representation. lence, heared the learned counsel for revision petitioner' Dr. 4, Severely fulminating the order under revision learned counsel for the petitioner would submit that when the J.Dys 3 & 4 failed to appear before the Court on 17.07.2018, the Court, instead of setting them ex parte ought to have issued arrest warrant in terms of Order XXI Rule 37(2) CPC pursuant Lo the request made by the D.Mr te secure their f presence before the Court for conducting means enquiry under Order XXJ Rule 40 CPC. Learned counsel would vehemently argue that such enquiry under Rule 40 has to be conducted in the presence of the judgment debtors and an opportunity also should be accorded to them and the said object can be achieved anly by securing, the presence of judament debtors by way of arrest. Instead, the Court dismissed the EP. jtsel! on erroneous observation that the D tr failed to prove the means of judgment debtors. Simee the enquiry was net conducted and D.Er has not adduced evidence, the question of D.Ar failing to prove the means of judement debtors does not arise. He thus prayed to allow the CURLP, wea The arguments advanced by the learned counsel for petitioner raise an important question af law as to the pracedure ta be followed by the execution Court in conducting the means enquiry to resolve whether or net the judgment debtor should be committed to civil prison for committmy breach ef the decree passed against him. Needless to emphasise, the methodology adopted to conduct enquiry in an arrest EP should be flaw less because the enquiry ulfimately culminate in cammitting the J.Dr to the portals of civil prison by extirpating his personal liberty which is one of the precious endowments afier life as recognized and enshrined in Article 21 of the Constitution.
6. Commission to civil prison for breach of contractual oblivation:
whether amounts to infringing upon fundamental rieht of liberty safeouarded wider Article 21 of the Constitution and violation of Article Ll of the International Covenant on Civil and Political Rights
(a) Several modes of execution are provided for different types of decrees = under Seefion 51 CPC, of which. execution of money decree is one. For convenience Section 41 is extracted as under:
Si. Powers of Court to enforce execution - Subject to such conditions and Umiuitiens as nvay be preseribed, the Court may. on the application of the decree-holder. order caccubion of the decrec-
(a) by delivery otarny property speelfically decreed:
(h} by attachment and sale or by the sale without attachment of any PPGPEPLY.
ic) by urrest and detention in prisan [far sueh period net exceeding the period speciiicd in section S58. where arrest and detention is parnissibie under thal section} Gli by appomuing a receivers or fo} in such other manner as the nature of the relic! granted may requires Provided thal. where the deeree is for the payment of money, execution by detention in prison shall not be ordered unless, afier giving the Fudgment-<debtor an opportunity of showing cause why he should not be committed to prison, the Court. for reasons recorded in writing, is saustivd-
i that the fudgment-debtor, with the object orecllect of obstructing or lclaying the exceution al the cdeerec-
Gas likely to abscond or leave the local limits af the jurisdiction af the Coan. or Gi} has, afler the institution of the suit in which the decree was passed. dishonestiy transferred. concealed. or removed any part of his property. ar F-commmitied any other act of bad faith in relation to His property. o1 éb) that ihe judement-debtor his. or hus had since the date of the decree. the meitis Lo pay | the aniaund Pihe deeree or some substantial part thereaf and refses ar rt s or bas refused or negtected to pity the same. or fc} that the decree is fora sum foravhich the judwment-debtor was bound ia fiduciary capacity fo account.
Explanation the calculation of the means of the judgment-debtor for the purnases of clause (b), there shall be defi out of account any property whieh, by ov wader any law er custont having the force of law for the ime hoing in friree. is exenspt from attachment in execution of the decree. hy An insight mto Seetion Si(c) makes it 4 clear that one of the modes of exceution of money decree is by arrest and detention in prison of the judgement debtor. Having regard to the lethality af the relief, jt had been impassionately argued on behall of the judgment debtors that committing the judament debiors to civil prison for mere uringement of a contractual obligation would amount to flagrant violation of Article 11 of the International Covenant on Civil and Political Rights Gor short, 'the ICCP Rights"} on one hand and Article 21 of the Constitution on the other, which argument was eruditely dealt with and decided by the renowned jurist V.RJArishna fyer in few judgements with reference to Section Sf CPC. in Xavier v. Canara Bank Limited! one of the arguments advanced against the commission of J.Dr to civil prison in execution of a money decree was that [CCP Rights are part of the law of land and have to be respected by the municipal Courts and in that view, Article 1! of the aforesaid covenant militates and provides immunity from imprisonment of indigent and honest judgement debtors. Article 1] of ICCP Rights reads as under:
"No one shall be imprisoned merely an the ground af inability te fulfill a contractual obligation".
c} An attempt was made in the said judgment to find out whether Section 51 CPC militates against the spirit of Article 11 of the international covenant. We will find in the proviso to Section S51 CPC that where the decree is for payment of money, execution by detertion in prison shall not be ordered without following the conditions laid down in said proviso. Those conditions which are already extracted supra are meant to safeguard the interest of J.Drs. Therefore, the Court in an arrest E.P. shall afford a notice to the J.Dr to give an opportunity to show cause as to why he should not be committed to prison. Thereupon, recording its satisfaction that the judement debtor with the object or effect of obstructing or delaying the execution of decree, committed certain acts, commit him to civil prison. In Navier's case (supra 1}, the learned Judge taking these procedural MANLVEE/0255/1969 safesuards into consideration observed that Section 51 has provided certain oS procedural sate "oS anards that if the debtor has no means to pay he cannot be arrested and detained: if he has and still refuses or neglects to honour his obligation or if he commits acts of bad faith, he would incur the lability to imprisonment under Section 5S} CPC. Learned Judge held this does not violate the mandate of Article 11. [tis further observed that if the judgment debtor once had the means, but now has not or if he has money now on which there are other pressing claims, it is violative of the spirit af Article 11 fo arrest and confine him in jail so as to coeree him into payment, While observing, jearned Judge however refused to accept the ambitious argument o of counsel for }.Dr that in view of Article 11 of ICCP Rights, J-Dr shall be given total immunity trom arrest. It was held that the basic human rights enshrined in the international covenants may at best inform judicial institutions and inspire legislative action within member States; but apart from such deep reverenee, remedical action at the instance of an aggrieved individual is beyond the area of judicial authority, The essence of the above abservation is that Section 51 CEC imbibes in it the spirit of Article 1 t by providing certain procedural safeguards to the judgment debtor before he is committed to civil prison for violation ofa civil decree.
7. Again in Jolly George Varghese v. The Bank of Cochin', the Apex Court (Hon'ble Judges Sri R.S. Pathak and Sn VLR. Krishna lyer) in the backdrop af executing Court not conducting any investigation regarding the eurrent ability of the J.Drs to clear off the debts or their malafide refusal if any to discharge the debis, posed uestion as to whether under such "AIR FORO SC 470 _eireumstances the personal freedom of the judement debtors can be held in ransam until repayment of the debt. and if Section S31 rw Order XXT Rule ~ 37 CPC is constitutional when tested on the touchstone of fair procedure under Article 21 and in conformity with the inherent dignity of the human person in the light ef Arsele TT] of the LC.C.P. Rights. In this content, referring to the Xavier's case (supra 1) the Apex Court observed as under:
#75. We concur with the Law Commission in tis censtructian of Section $1 C.PLC. ft fotlows that quondarn affluence and current indigence without intervening dishonesty or bad faith in Uquidaling his hiabiity can he consistent with Article 17 of the Covenant, because then no detention is permissible under Section ST CLPLC.
16. Equally meaninetul is the woport of Article 21 of the HUGH g I Constitution in the context of iraprisarynent for non-payment of debts. The high value of human dignity and the warth of the human person cushrined in Article 24, read with Arts. 14 and 19, obligates fhe State pol fo incarcerate except under law which ts fair, just and reasonable ia tts procedural essence. Maneka Gandhi's case flO7R} 1 S.CLR 246 as develaped further in Sunil Batra ovo Delhi | Administration MANLUSSC/OLRSEO7R © 1O7R Crk | U7?) Sita Rar and Ors. v. State of UP. MANU/SC/O244/1979: 1979 Cril. J 659 and Sunil Batra vo Delhy Adminisuration MANU/SC/QT 84/1978 > 1978 Cri. F P74b lays down the proposition. fis too obvicus to need elaboration that ts cast a person i prison because of his poverty anc consequent imabiliiy lo meet his contractual Hability is appalling. "Fo be poor, in this fand of daridra Narayana, is no erime and. to 'recaver' debts by the procedure of putting abe in prison i too tagrantly vielative ot Article 21 unless there is proal of the minimal fabness of his wilful tailure to pay ia spite of his sufficient means and absence of move terribly pressing claims on his mcans such as medical bills to treat cancer or other grave iflmess, Unrcasonableness and anigimess in such a procedure is inferable from Article PL of the Covenant. Bat this is precisely the mferprctation we bhaye put on the Provisd ta Seetion S| C.P.C. and the lethal blow of Article 2] Carmo surike dewn the previshor, aS now interpreted."
Reearding the question whether Section 51 rw Order NAL Rule 37 CPC is wielative of Arucle 24, it was observed as under:
"ER. The question may squarely arise some day as to whether the Proviso to Section S34 voud with Order 21. Rule 37 is in excess af the Constitutional mandate in Article 21 and bad tp part. in the present case since we are rernitting the matter for reconsideration, the stage has not yet arisen for us to ge inte the vires. that is why we are desisting front that ossiey.
S, Thus, the sum and substance of above quoted judgments is that Section S1(C) CPC theugh provides for committing the judgment debtor to vivil prison, still such a mode of execution is not violative of Article }1 of the {CCP Rights for it provides procedural safeguards in the proviso of very same section. 'fhus, a mere non-payment of deeretal amount by J.Dr will net land him in civil prison without conducting enquiry and Court satisfying that one of the conditions mentioned in the proviso is satisfied to transmit him to the civil prison. In the contest of Section 31 proviso (is), it was observed in these judgments that yuondam affluence and current indigenee or having sufficient means at present by the J.Dr alone is not sufficient unless there is a proof of his wilful failure to pay inspile of his sufficient means and absence of more terribly pressing claims on his means such as medical bills fo treat cancer or other grave illness. Therefore. there can be no seintifia of doubt that when an execution petition on the basis of money deerce is filed for arrest of judgment debtor, the Court shall afford an opportunity to judgment debtor and conduct enquiry as to whether since the decree, the judgment debtor has, or has had the means to pay the amount of the deeree or some substantial part thereof and still refuses or neglects or has refused or ne se a reasoned order.4
elected to pay the same and then pass the 9 The next question is whether such an enquiry has to be conducted in the presence of the | udgment debtor or in absentia?
10. The procedure as governe OPC which are as under:
37, Diseretionary power fo d by Order XXI Rule 37 CPC and Rule 40 permit judgment-debtur to show ea2use against detention in prison - (1) Notwithstanding anything in these riles. where an application is for the execution of a decree lor the payment © f money by the arrest and detention in the civil prison of a judement-debtor who is fiable to be arrested in pursuance of the application, the Court [shall}, instead of issuing a warrant for his arrest, igsue a notice calling upan him to appear befare the Court on a day to be specified to ihe netiee and show cause why be should not he committed to the emi prison: {Provided that such notice shalf nol be necessary do the Court i satisfied, by affidavit, or otherwise, that, with the object ot eifect af delaying the execution of the deeree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Conrt.] (2) Where appearance is not nade in ahedience to the notice, the Court shall. if the deeree- holder so pequiires, issue a swarrant for the arrest of the judemeni-debtor.
40. Proceedings on appears notice ar after arrest"
nce of judgment-debior in obedience fo (1) When a judgment-debtor appears before the Court obedience to a notice issued under cule 37, or is brought before the Court alier being arrested in exeention of a decree for the payment of rauney, the (court shall proceed to hear the decree-holder and take all such aviderice us may be produced by him in support of his application for exeCUtonl, and shall then give the judement-debtor an opportunity of showing cause why he should not be com mitted to the civil prison.
(2) Pending the conclusion of the inquiry under sub-rule (13 the Court muty, in its discretion, order the judgment-debtar to be detained in ihe custody of an officer of t he Court or release him on his furnishing security to ihe satisfaction 0 f the Court for his appearance when required.
~~ fad subject to the provisions this Code, make an order not already under arrest -
} Upon the conclusion of the inquiry under sub-rule C1) the Court oy, al seetion 4] and te the other provisians of for the detention of the judgment-debtor tn the eivil prison and shall i thed event cause him to he arresied if he is Provided that in order to vive the judgment-deblor an opportunity of tisfving the decree, the Court may, before making the order of detention, red ¢ the judgment-debtor in the custody of an afficer of the Court for a specified period not exceeding fifteen days or release fim on his furnishing security ( the satislaction af the Court for his appearance at the expiration of the specified period i he decree be not suoner satished.
(4) A judgment-debtor released under this rule may be re-arrested., gm eo to ) When the Court dees not make an order of detention under sub-rule £3}, it shall disallow the application and, if the jadgment-debtor is under arrest. direct bis release.
It. The scheme of the code postwating the enquiry regarding means of the judgment debtor is thus explained in Order XXL Rule 37 and 40 CPC sufficiently. A decree holder who secks execution by way of arrest and detention of the judgment debtor in civil prison sh all file an affidavit in terms of Order XXP Rule 11-A CPC stating the grounds on which the arrest is applied for. Thereupon, the Court will have two options under Rule 37. If the Court is satisfied by the aforesaid affidavil and came to conclusion that with the abject or effect of delaying the execution of the decree the judgment debtor is likely to abscond or leave the local jurisdiction of the Court, if can issue warrant of his arrest straight away for securing his presence of otherwise the Court, insiead of issuing warrant of arrest, issue a notice calling upon judgment debtor to appear before it and show cause why he should not be committed to civil prison. These are the options available to the Court. Then Rule 37(2) CPC envisages that pursuant to the notice, if the judgment debtor has not appeared, the Court shall, if the decree holder so requires, issue a warrant for the arrest of the judgment debtor. So, the Court can secure the presence of the judgment debtor either by way of summoning him or by issuing warrant. It should be noted that issuing warrant of arrest under Rule 37(1) or (2) is only for securing the presence of the judgment debtor so as to proceed with an enquiry under Rule 40, but not to detain him in civil prison in terms of Sections 31 and 35 CPC. Therefore, at the stage of Order XXT Rule 37 CPC the Court need not look inte the merits of the case as envisaged under proviso to Section 21. The distinction between arrest under Rule 37 and detention ender Seetion 51(c} was well explained in G) Suravarapu Putrayya v. Madduku ri Veerrajw' and (0 P.G.Ranganatha Padayachi v. The Mayavaram Financial Corporation Lid?
12, Then Rule 40 speaks that when the judgment debtor either appears before the Court in obedience to the notice issued under Rule 37 or iS brought before the Court after being arrested, the Court shall proceed to hear the decree holder and take the evidence produced by him in support of the execution petition and shall then give the judgment debtor an opportunity of showing cause why he should not be committed te civil prison. Further, pending aforesaid enquiry the Court in its diseretion order the judgment debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction af the Court for his appearance when required. On conclusion of enquiry, the Court may, subject to the provisions of Section 31, make an order for the detention of the judgment debtor in civil prison and shall, im that event, cause him to be arrested if he is not already under arrest. When the Court does not make an order of detention, it shall disallow the execution petition and if the judgment debtor is under arrest, direct his release.
13. So, a careful analysis of the above two Rules, more particularly Rule 40, would give a clear connotation that the enquiry contemplated under Rule * yoH4 42) Andhra Weekly Reporter 38 (D1) 'AIR 1074 Madras | = MANUSTNIQ187/1974 ence 40 shall be conducted in the presence of the judgment debtor. Such a 7 mandate is understandable in the light of the fact that the enquiry sometimes may culminate in the arrest and detention of the judgment debtor in civil prison affecting his personal liberty. It gives a further understanding that ex parte enquiry in the absence of judement debtor is uncalled for. Tt was so held by a learned single Judge in Kasi Subbaiah Mudali y. Kasi Veeraswamy Mudali. In that case, the decree holder filed E.P. under Order XXL Rule 37 CPC for arrest and detention of the judgement debtor, The execution Court issued notice under Rule 37€1) CPC to judgment debtor, but due fo his non-appearance set him ex parte and posted the matter for the evidence of deeree holder. He was subsequently examined and the Court basing on the record gave a finding that the judgment debtor havi ng sufficient means to pay the decree amount still avoided to pay the same and accordingly, issued warrant of arrest for production of the judement debtor sy before the Court, which order was challenged in revision. In that context, i was held as under:
"Ya. Admiutediy. in the present case, the court has undertaken an ex parte enquiry and recorded an ex parte finding about the passession of means by the petitioner herein. The said exercise by the executing court was comirary to the express or unambiguous provisions of Order 21, particularly Rade 40, The docket arders passed by the executing court from ume to time would indicate that it has not at all taken into account the requirement under Rule 40 of Order 21 or Section $5 of the C.B.C. The execuling court has net followed the espress provisions of C.P.C., in passing the order ander revision, The order cannot be sustained either in facts or ga faw. Accordingly. the same is set aside and the C.R.P. is allowed. However, there shall be ne order as to costs."
* 2002 (3) ALT 240 © MANLVAPFIS97/2001 sone?
ts io. In the fiehtabthe above findings and presidential purimetrics when the fuets of the case an hand are perused. ii the instant case also alley attercting Cwurt for sore tink. Fors 3 & 4 remained absert and the execulian Court sek thes ex porte enel posted matter Por evicence of decree halder to prayve the micuns of juderment debtors. [rmiist be said that the execution Clourt was totally abliviaus af ihe preecedidre comleonipated under Order NAT Pool 4 EP which ordaias thar the means cnewiry must be hela i the presemec of the foadeorent chebtor.
(Loppers tespite ol the decree hofdlor recpuesting, the Court to issue arcesi wearer oy terms of Rute S32} CPC the Court below insivad of issuing warrant held ceecree holder failed to establish ihe means of the juckement debtors acd ultimately dismissed the EPL which ts totally an erroreentea order beredt of feosl sroredcter, fF. Inthe result, this Civil Revision Petition is alloswed and the unpugned order in EP SoS of BOL? is sel aside anc conmscetently bP. ts cestored to fie with a direction to tho esccution Couecl to issue warrnt Of arent agua brisl gdudganent debtors 3 & 4+ in terms of Graer MMT Rule 37 €2) OPC are alter SLL ny thelr presence, comairet cnquiey in their presence tn terms of Order SMUAE Rede 40 CPC anid pass an appropriate order oan mers os sealiticis ts:
Nis oreber as bey Gost.
MGiscellancuus Petitions, iP ares. pending in this Cod} hevision Potition shalk apap ohvsedh.
SOi- ML RANESH BABU ASSISTANT REGISTRAR wy ~~ ret ff Hh oy ;
HTRUE COPYI SECTION OFFICER Mh. 4 Fo ES Ce Se Prasad Rao, One Fair Copy to the Hon'ble Sri Justice UU. Durga fone " For his Lordships Kind Perusal} ' i aes Paiamahendravaran, East Godavari District.
4. Tre Principal furor Civid burchge. 2ajarnahendra vara, Hast let é > Ome OC to SRI A. RAVERNDRA BABU Advocate [OPUG)
4. OL » hop . : Bominedryyp ead Povk rebiee: and Chormpany 5 The Linder Secretary, Unior of trchei, Ministry of Lapa, Jusiiog and lorripainy Thre anolation Library, High Court Biuhngs. A. HIGH COURT DATED:03/06/2079 ORDER CRP.No.7 107 af 2078 THE PETITION [S ALLOWED NO ORDER AS TO COSTS