Andhra HC (Pre-Telangana)
Kalidindi Rama Raju vs Vijaya Bank (Nationalised) With Its ... on 9 July, 2001
Equivalent citations: 2002 A I H C 1627, (2001) 2 ANDHWR 184
ORDER P.S. Narayana, J.
1. This civil revision petition is directed against an order made in E.P. No. 48 of 1995 in S.C. No. 149 of 1993 on the file of the Subordinate Judge, Bhimavaram dated 17-7-1997.
2. It may be appropriate to extract the order passed by the court below which reads as follows:
"This E.P. is filed for issuance of arrest warrant against the J. Dr. to recover the decretal amount. The J.Dr. filed counter contending that he has no means to pay the decree debt.
The J.Dr. is examined as R.W.1. He deposed that he worked as P.D. in D.N.R. college, Bhimavaram. He used to get monthly salary of Rs.3,000/- at the time of his retirement. He further deposed that he got Rs.30,000/- towards his retirement benefits.
The retirement benefit which he received from D.N.R. College is more than sufficient to discharge the debt under the E.P. Therefore, it cannot be said that the J.Dr. has no means to discharge the E.P. debt. Hence, issue arrest warrant by 2-8-1997 against the J.Dr."
3. It is pertinent to note that on behalf of the respondent decree holder no evidence was let in and on behalf of the revision petitioner, he was examined as R.W.1.
4. Sri C. Ramachandra Raju, learned counsel representing the revision petitioner judgment debtor had contended that the revision petitioner is only a guarantor and the court below had passed a cryptic order without recording proper reasons. Apart from it, the learned counsel also had contended that the necessary ingredients contemplated by the different provisions of the Code of Civil Procedure also had not been complied with and hence the impugned order suffers from jurisdictional error and is liable to be set aside. The submissions made by the petitioner's counsel had been opposed by the counsel for the respondent decree holder representing the Bank.
5. After hearing both the parties, I am of the opinion that the impugned order suffers from the error of jurisdiction and from the facts and circumstances of the case, the court below had totally erred in making such an order though all the essential conditions for ordering arrest of the judgment debtor, had not been made out by the respondent decree holder.
6. In JOLLY GEORGE VARGHESE V. BANK OF COCHIN 1 the Apex Court had observed as follows:
" Equally meaningful is the import of Art.21 of the Constitution in the context of imprisonment for non payment of debts. The high value of human dignity and the worth of the human person enshrined in art.21, read with arts. 14 and `9, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhi's case as developed further in Sunil Batra V. Delhi Administration 1978 (4) SCC 494, Sitaram V.State of U.P. and Sunil Batra V. Delhi Administration W,O,Bi, 1009 of 1979 d/- 20-12-1979 ( SC) lays down the proposition. It is too obvious to need elaboration that to cast a person I prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor in this land of Daridra Narayana ( land of poverty ) is no crime and to recover by the procedure of putting one in prison is too flagrantly violative of Art.21 unless there is proof of the minimal fairness of his willful 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 inferable from Art.11 of the Covenant. But this is precisely the interpretation we have put on the proviso to S.51 C.P.C and lethal blow of Art.21 cannot strike down the provision, as now interpreted.
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 be 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 Art.11 ( of the Covenant ) and Art.21 ( 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 emphasizes 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 debtor's other pressing needs and straitened circumstances will play prominently. We would have by this construction, sauced law with justice, harmonized S.51 with the covenant and the Constitution."
7. In VEMANARAYANA V. SAKKU BAI 2 it was held by this court as follows:
"Section 51 of the Code of civil procedure enumerates arrest and detention in prison as one of the modes of executing the decree. However, the proviso to the said section creates a safeguard in favour of the judgment debtor when the said mode is invoked. The safe guard is that the judgment debtor must be given an opportunity to show as to why he should not be committed to prison The proviso further enumerates the various factors which ought to be taken into consideration by the court before ordering execution by arrest and detention. Those factors are:
(a) that the judgment debtor with the object or effect of obstructing or delaying the execution of the decree,--
(i) likely to abscond or leave the local limits of the jurisdiction of the court; or
(ii) 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 refuses 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.
From the scheme of section 51, it is clear that when the court is satisfied that one of the factors mentioned in clauses (a) to (c) of the proviso exists or believed to be existing, by the court, then only, the court would be justified in passing an order for the arrest and detention of the judgment debtor."
8. In T.DORASWAMY REDDY V. K.KODANDA NAIDU 3at page 50 this court held as follows:
" Section 58, sub section (1)-provides, inter alia, that every person detained in the civil prison in execution of a decree shall be so detained " where the decree is for payment of a sum of money exceeding one thousand rupees, for a period of not exceeding three months....." . This provision gives discretion to the court to fix the period for which the judgment debtor should be detained in a civil prison, the maximum period for which the judgment debtor could be detained being three months. It is obvious from this that while directing arrest under sub rule (3) of Rule 40 of Or.21 of the Code, the court will have to fix the period for which the judgment debtor should be kept under detention. The learned I Addl.Dist.Munsif has not specified the period for which the judgment debtor should be kept in detention, which shows that he has not applied his mind in this regard."
9. The Courts have been viewing the matters involving personal liberty of citizens always with care and caution. Repeatedly our Courts have been coming down heavily upon the arbitrary arrests and detentions affecting the rights of the citizens. It may not be out of context if a reference is made to certain of the observations made by the Apex Court in a slightly different context in THE CHAIRMAN, RAILWAY BOARD AND OTHERS Vs. MRS.CHANDRIMA DAS & OTHERS 4 " Thereafter, the Declaration sets out, inter alia, in various Articles, the following: "Article 1 - All human beings are bon free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2 - Every one is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion NATIONAL OR SOCIAL ORIGIN, PROPERTY, BIRTH OR OTHER STATUS. Furthermore, NO DISTINCTION SHALL BE MADE ON THE BASIS OF THE POLITICAL, JURISDICTIONAL OR INTERNATIONAL STATUS OF THE COUNTRY OR TERRITORY to which a person belongs, whether it be independent, trust, non-self governing or under any other limitation of sovereignty. Article 3 - Everyone has the right to life, liberty and security of person. Article 5 - No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 7 - All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Article 9 - No one shall be subjected to arbitrary arrest, detention or exile ".
" The International Covenants and Declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to the above words in those Declarations and Covenants have to be such as would help in effective implementation of those Rights. The applicability of the Universal Declaration of Human Rights and principles thereof may have to be read, if need be, into the domestic jurisprudence.
" Lord Diplock in Salomon V. Commissioners of Customs and Excise [1996] 3 All ER 871 said that there is a, prima facie, presumption that Parliament does not intend to act in breach of international law, including specific treaty obligations. So also, Lord Bridge in Brind V. Secretary of State for the Home Department [1991] 1 All ER 720, observed that it was well settled that, in construing any provisions in domestic legislation which was ambiguous in the sense that it was capable of a meaning which either conforms to or conflicts with the International Convention, the courts would presume that Parliament intended to legislate in conformity with the Convention and not in conflict with it".
10. Reliance was also placed in K.KARUNAKAR CHETTY V. SINDICATE BANK 5; VISWANATHAN V. KARNATAKA BANK LIMITED 6; MUKRAM V. HARDIP SINGH 7; and A.VENKAT RAO V. JAGAN MOHAN 8; for the purpose of substantiating the contentions raised by the revision petitioner.
After discussing the case law on the point and before parting with the case, I am constrained to say the following words " recovery by arrest and detention in execution of decree is one of the modes provided for by the code of civil procedure. Arrest and detention are matters involving personal liberty of citizens and hence arbitrary arrests have been repeatedly deprecated. The courts, most probably due to pressure of work in several arrest execution petitions are passing casual orders not supported by any reasons and in a routine way without application of mind or without properly examining the mater. This trend appears to be on increase in the recent times. May be that certain judgment debtors may be really dishonest and intentionally and willfully they neglect to discharge the decree debts. But there are several cases where the judgment debtors are really poor and not having means to discharge the debt. To be poor in this holy traditional but poverty stricken country is not a sin. Hence while ordering arrest and detention of judgment debtors the following principles have to be borne in mind.
1. Passing cryptic orders not based on reasons have to be avoided.
2. Courts are expected to be cautious while making order of arrest in execution of decree since it involves personal liberty.
3. Proper opportunity has to be given and necessary enquiry has to be made while making an order of arrest.
4. Courts may also examine whether other modes of recovery are available to the decree holder and is it necessary to order arrest for recovery of the amount and whether judgment debtors are willfully and intentionally neglecting to discharge the decree debts and courts may examine the relevant circumstances also in this regard.
5. Even while making an order of arrest in default of appearance of the judgment debtors courts have to prima facie satisfy themselves on the material placed before them that an order of arrest can be made.
6. Courts shall also fix the period for which the judgment debtors are to be kept in detention.
11. I hope and trust that these guidelines specified supra are only illustrative but not exhaustive.
12. After examining the material available on record and after perusing the impugned order I am of the opinion that the impugned order suffers from legal infirmity and illegality and is liable to be set aside.
13. Accordingly the impugned order dated 17-7-1997 passed in E.P. No. 48 of 1995 in S.C. No. 149 of 1993 on the file of the Subordinate Judge, Bhimavaram is hereby set aside and the matter is remitted back to the court below with a direction to dispose of the matter in accordance with law after giving opportunity to both the parties to let any further evidence if any if they choose to do so. Civil revision petition is accordingly allowed. No costs.