Madras High Court
Arumugham vs Muthukumaraswami on 6 January, 2014
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.01.2014 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR C.R.P (NPD) No.3570 of 2013 Arumugham ...Petitioner vs. Muthukumaraswami ...Respondent Civil Revision Petition is filed under Section 115 of the Civil Procedure Code against the fair and decreetal orders of the learned Additional Subordinate Judge, Chengalpattu dated 07.11.2012 in E.P.No.105 of 2011 in O.S.No.36 of 2011. For Petitioner : Mr.V.Nicholas For Respondent : K.P.Gopalakrishnan for R1 ORDER
The Judgment debtor against whom the Executing Court has passed an order directing his arrest for detention in civil prison is the petitioner in the present revision filed against the said order of the executing Court. The respondent herein is the decree holder.
2. An ex parte decree was obtained by the respondent herein against the revision petitioner on 30.06.2011 in O.S.No.36 of 2011 on the file of the Additional Subordinate Judge, Chengalpattu. In the decree, the revision petitioner/judgment debtor was directed to pay a sum of Rs.2,03,900/- together with an interest at the rate of 12% p.a from the date of plaint till the date of decree and a further interest at the rate of 6% p.a from the date of decree till realization on the principal component of the plaint claim, namely Rs.1,50,000/- and also costs.
3. Since the revision petitioner/judgment debtor did not make payment of the decreetal amount, the respondent herein/decree holder levied execution by presenting E.P.No.105 of 2011 for recovery of the decree amount by effecting arrest of the judgment debtor and detaining him in the civil prison. As the Execution Petition is one for arrest, the learned Additional Subordinate Judge, Chengalpattu issued notice to the revision petitioner herein/judgment debtor and the revision petitioner filed a counter stating that he has got no means to pay the decree amount. It was also contended that a man of no means could not be arrested in execution of a decree for payment of money.
4. The learned Additional Subordinate Judge, Chengalpattu conducted an enquiry in which the decree holder figured as PW1 and the judgment debtor figured as RW1. The judgment debtor produced his medical records as R1 and no document was produced on the side of the decree holder.
5. The learned Additional Subordinate Judge, Chengalpattu, at the end of enquiry, heard the arguments advanced on both sides and passed an order directing arrest of the judgment debtor. The said order is challenged in the present Civil Revision Petition filed under Section 115 of the Code of Civil Procedure.
6. In the Civil Revision Petition, before admission, notice was sent to the respondent/decree holder and the respondent is before this Court represented by a counsel. As stay of operation of the order passed by the Executing Court had been sought for, this Court passed a conditional order of stay directing deposit of Rs.25,000/- to the credit of the suit. The said condition was complied with by the judgment debtor. In view of the order of interim stay granted by this Court, the respondent/decree holder has chosen to file M.P.No.2 of 2013 to vacate the interim stay granted by this Court. As such, this matter stands listed today for hearing the stay petition, namely M.P.No.1 of 2013 and the vacate stay petition, namely M.P.No.2 of 2013 in the Civil Revision Petition. However, this Court expressed a view that instead of taking up the Miscellaneous petitions, Civil Revision Petition itself could be taken up for disposal, for which the learned counsel for the revision petitioner and the learned counsel for the respondent expressed their consent.
7. Accordingly, the arguments advanced by Mr.V.Nicholas, learned counsel for the petitioner and by Mr.K.P.Gopalakrishnan, learned counsel for the respondent are heard. The documents produced in the form of typed-set of papers are also perused.
8. According to the submissions made by the learned counsel for the revision petitioner, the impugned order of the Court below is not sustainable and on the other hand, is liable to be set aside insofar as the learned Judge of the Executing Court has not followed the procedure contemplated in the relevant provisions of the Code of Civil Procedure dealing with the arrest of the judgment debtors in execution of money decrees. The learned counsel for the revision petitioner drew the attention of the Court to Section 51 of the Code of Civil Procedure and Rule 40 of Order XXI of the Civil Procedure Code. Besides drawing the attention of this Court to the above said provisions, learned counsel for the revision petitioner argues that the mandatory requirement of recording a finding regarding presence of at least one of the contingencies found mentioned in sub-clause (a) to (c) of clause (e) of Section 51 was not followed by the learned Executing Judge and that therefore, the order of the learned Executing Judge, which is impugned in this Civil Revision Petition should be set aside. For better appreciation, Section 51 of the Code of Civil Procedure is reproduced hereunder:
"51. Powers of Court to enforce execution.
Subject to such conditions 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 or by the sale without attachment of any property;
(c) by arrest and detention in prison 1[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,
(i) 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 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.
Explanation.In the calculation of the means of the judgment-debtor for the purposes 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.
9. A reading of the said provision will show that when a judgment debtor is sought to be committed to civil prison in execution of a decree for payment of money, he should be given an opportunity to show-cause why he should not be committed to prison. After giving such an opportunity, the Court must record a finding that he is liable to be committed to prison because of the presence of any one of the conditions found in sub-clause (a) to (c) of clause (e) of the said section. A perusal of the said section will make it clear that it deals with an order committing the judgment debtor to civil prison and not the arrest of the judgment debtor. But the relevant provision dealing with the arrest of the judgment debtor is found in Order XXI Rule 40, which reads as follows:
40. Proceedings on appearance of judgement-debtor in obedience to notice or after arrest (1) When a judgment-debtor appears before the Court in obedience to a notice issued under rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison. i (2) Pending the conclusion of the inquiry under sub-rule (1) the Court may, in its discretion, 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 of the Court for his appearance when required.
(3) Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of section 51 and to the other provisions of the Code, make an order for the detention of the judgment-debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest:
Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied.
(4) A judgment-debtor released under this rule may be re-arrested.
(5) When the Court does not make an order of detention under sub-rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release.
10. Order XXI Rule 37 is to the effect that where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison, the Court shall issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show-cause why he should not be committed to civil prison, instead of issuing a warrant for his arrest. The proviso found therein provides an exemption for the same. It says that if the Court is satisfied that the issuance of the notice will enable the judgment debtor to abscond or leave the local limits of the jurisdiction of the Court, such notice shall not be necessary and in such cases, the Court can issue a warrant of arrest. Rule 40 under the very same Order, deals with passing of an order directing detention in the civil prison when the judgment debtor appears in obedience to the notice contemplated under Rule 37 or is brought before the Court after being arrested in execution of the warrant issued by the Executing Court. Rule contemplates recording of evidence as may be produced in support of the application for execution and thereafter giving an opportunity to the judgment debtor to show-cause why he should not be committed to the civil prison.
11. A conjoint reading of the above said provisions in the light of the fact that the arrest of a person involves making inroads into the personal liberty and human rights of a person, the Court should be satisfied before passing an order committing judgment debtor to civil prison that he is likely to abscond or leave the local limits of the jurisdiction of the Court or he has dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property or that he refuses or neglects to pay the decree amount or the substantial part thereof despite having means to do so or that the decree is for payment of money by the judgment debtor, who in a fiduciary capacity to account for the same.
12. In this regard, Section 55 of Code of Civil Procedure is also relevant. While enjoining a duty on the Court to go into question whether the judgment debtor can be committed to civil prison, a corresponding mitigating right is also conferred in favour of the judgment debtor, who is really unable to pay the decree debt. As per Section 55, when a judgment debtor is arrested in execution of a decree and brought before the Executing Court, a duty is cast upon the Executing Court to inform him that he may apply to be declared an insolvent and to discharge him, if he has not committed any of the acts of bad faith, provided he expresses his intention to apply to be declared an insolvent and furnishes security to the satisfaction of the Court. In other words, the said section directs the Executing Court to release the judgment debtor if he expresses his readiness to file a Debtor's I.P for getting him declared an insolvent and furnishes security to the satisfaction of the Court for applying so within a month in the Court of insolvency. The above said protection sought to be conferred on the judgment debtors against arbitrary arrest and detention in execution of money decree is no doubt flouted by the learned Judge of the Executing Court in not recording a finding as to the grounds on which he came to the conclusion that the judgment debtor was liable to be arrested and sent to civil prison. The learned Judge of the lower Court also has not recorded his finding as to why the cause shown by the judgment debtor should not be accepted. The learned Judge of the lower Court simply made an observation that so long as the decree remains intact without being satisfied, the judgment debtor is bound to make payment of the decree amount. To that extent, the observation made by the Court below may be correct. But the Court below proceeded further to state that so long as the decree amount is not paid, he is liable to be arrested and detained in civil prison. That part of the order is totally unsustainable, because no reason has been recorded in making such an observation and passing such an order.
13. For all the reasons stated above, this Court comes to the conclusion that the order of the learned Executing Judge is erroneous, infirm and shows patent irregularity resulting in miscarriage of justice warranting interference by this Court in exercise of its power of revision.
In the result, the revision succeeds and the order of the learned Additional Subordinate Judge, Chengalpattu dated 07.11.2012 passed in E.P.No.105 of 2011 in O.S.No.36 of 2011 directing arrest is set aside. The matter is remitted back to the lower Court for passing a P.R.SHIVAKUMAR.J., gpa fresh order assigning reasons why the cause shown by the judgment debtor against his proposed detention in civil prison should not be accepted. Admittedly, the amount deposited by the revision petitioner/judgment debtor is available with the Executing Court. As the said amount has been deposited by the judgment debtor, it shall be just and proper to allow the respondent/decree holder to withdraw and adjust the said amount towards the decree amount and file a memo of part satisfaction. No costs. Consequently, the connected miscellaneous petitions are closed.
06.01.2014 Index:yes Internet:yes gpa To The Additional Subordinate Judge Chengalpattu
C.R.P (NPD) No.3570 of 2013