Andhra HC (Pre-Telangana)
Markapuram Prasad vs Mada Subbaraidu on 23 November, 2004
Equivalent citations: 2005(2)ALD105, 2005(1)ALT666
Author: B. Seshasayana Reddy
Bench: B. Seshasayana Reddy
ORDER B. Seshasayana Reddy, J.
1. This Civil Revision Petition is directed against the order dated 31 -01-2004 passed in E.P. No. 478 of 2002 in O.S. No. 594 of 2001, on the file of Principal Junior Civil Judge, Cuddapah, by which the learned Principal Junior Civil Judge ordered detention of the Judgment-debtor in civil prison.
2. The petitioner is the judgment-debtor and the respondent is the decreeholder in E.P. No. 478 of 2002 in O.S. No. 594 of 2001. The decreeholder filed E.P. No. 478 of 2002 for realization of the decretal amount and sought for detention of the judgment-debtor in civil prison. It is the case of the decreeholder that the judgment-debtor having sufficient means to discharge the decretal debt neglected and avoided to pay the same. The executing Court issued notice to the judgment-debtor under Order 21 Rule 37 of the Code of Civil Procedure (for short 'the Code") in the format prescribed in Form No. 12 of Appendix E of Code. The judgment-debtor entered appearance and filed counter stating that he has no means to pay the decretal amount and has no source of income and has no properties either movable or immovable and therefore he is not liable to be detained in civil prison and thus sought for dismissal of E.P. with costs. The decreeholder besides examining himself as P.W-1 examined one P. Nagaraju as P.W-2 and marked two documents as Exs. A-1 and A-2 to prove the means of the judgment-debtor. Ex. A-1 is the registered sale deed dated 06-05-2003 and Ex.A-2 is the valuation certificate issued by the Sub-Registrar. The judgment-debtor did not choose to adduce evidence, either ocular or documentary, to substantiate his plea of no means to pay the decretal amount. The executing Court on considering the evidence brought on record and on hearing Counsel for both the parties recorded a finding that the judgment-debtor having sufficient means to discharge the decretal debt neglected to pay the same and accordingly ordered detention of the judgment-debtor in civil prison. Assailing the order dated 31-07-2004 passed in E.P. No. 478 of 2002, the judgment-debtor has filed this Civil Revision Petition.
3. Learned Counsel appearing for the petitioner/judgment-debtor submits that the order of detention of the petitioner in civil prison is not preceded by a show cause notice as contemplated under Order XXI Rule 40 of the Code and therefore the impugned order is liable to be set aside. He also submits that the impugned order is liable to be set aside since it does not indicate the period of detention. His further submission is that the detention of the judgment-debtor in civil prison without resorting to the recourse of realization of the decretal amount by bringing the properties of the judgment-debtor to sale is not legal and proper and therefore the impugned order is required to be set aside. In support of his submissions he placed reliance on the decisions of our High Court in Suravarapu Putrayya v. Muddukuh Veerraju, 1964 (2) An.W.R. 38 (D.B.); T. Doraswamy Reddy v. K. Kodanda Naidu, 1997 (3) An.W.R. 47; Kalidindi Rama Raju v. Vijaya Bank, 2001 (2) An.W.R. 184 = 2001 (2) APLJ 109 (HC); K. Vijayakumar v. N. Gururajarao, and S. Ismail v. Agraseni Chit Funds (P) Ltd., .
4. In the first citied decision, it has been held by the Division Bench of this Court that where a Court issues a warrant either under Sub-rule (1) or under Sub-rule (2) of Rule 37, it does not do so with the intention of committing the person against whom the warrant is issued to prison. It issues such a warrant only to secure such a person in Court. The provisions of Order XXI, Rule 40, will apply only at a later stage, that is, after the judgment-debtor appears in Court in pursuance either of a notice or a warrant. In the second cited decision, S. Parvatha Rao, J. has held that while directing arrest under Sub-rule (3) of Rule 40 of Order XXI of the Code, the Court will have to fix the period for which the judgment-debtor should be kept under detention. It is useful to refer para (6) of the judgment and it is thus:
"6. It has also to be noticed that this is a case where the judgment-debtor appeared in Court pursuant to the notice issued to him under Rule 37 of Order 21 of the Code of Civil Procedure(for short "the Code") and showed cause why he should not be committed to the civil prison and thereafter the Court heard the decreeholder and the judgment-debtor under Rule 40 of Order 21 of the Code. Sub-rule (3) of the said Rule 40 provides as follows:
"(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 this 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 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".
This has to be read along with Sec. 58 of the Code. Sub-section (1) of Section 58 of the Code 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 the 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 Order 21 of the Code, the Court will have to fix the period for which the judgment-debtor should be kept under detention. The learned 1st Additional District 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. See the decision of the High Court of Bombay in Pundalik v. Maharashtra State Farming Corporation, "
In the third cited decision, P.S. Narayana, J. has held that cryptic orders not based on reasons have to be avoided as arrest involves personal liberty. Certain guidelines have been issued to the executing Court to be borne in mind while ordering arrest and detention of the judgment-debtors. The guidelines stated in the cited decision are as follows:
(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 decreeholder and is it necessary to order arrest for recovery of the amount and whether judgment-debtors are wilfully 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.
In the fourth cited decision, it has been held by D.S.R. Varma, J that the proviso to Sec. 51 of Code deals with the procedure and circumstances under which an arrest can be ordered. I deem it appropriate to refer paragraphs 23 and 24 of the cited decision and they read as follows:
"23. It is to be seen that Section 51 of the Code, which deals with the powers of the Court to enforce execution, prescribes different modes to execute the decree. Arrest of the judgment-debtor is one among them.
24. The above proviso deals with the procedure and the circumstances under which an arrest can be ordered. It further suggests the legislative intention that certain measures are to be taken before the right of a citizen guaranteed under Article 21 of the Constitution of India are to be affected."
In the fifth cited decision, D.S.R. Varma, J. held that no arrest could be ordered for sending JDr to Civil prison unless the procedure under Order 40 of the Code is followed. It is useful to refer paras 15 and 16 of the cited decision and they read as under:
"15. Rule 40 of Order XXI of the Code is the direct answer to this question, which reads as under:
"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 decreeholder 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."
16. From a fair reading of the provisions of Rule 40 of Order XXI of the Code, it is clear that Executing Court has to follow the procedure prescribed under the said rule. In other words, Rule 40 of Order XXI of the Code. Is not only procedural but also mandatory in nature and confers certain powers upon the executing Court during the pendency of an enquiry to be conducted.
5. Keeping in view the proposition of law laid down in the aforesaid decisions, it is to be examined whether the warrant of arrest issued by the Executing Court under Order XXI Rule 38 of the Code is legal and proper. Section 51 deals with the powers of Court to enforce execution.
Section 51 reads as follows:
"Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decreeholder, 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 (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 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 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."
Proviso to Section 51 so far as it is relevant is that where the decree is for payment of money, execution by detention inprison shall not be ordered unless, the Court is satisfied 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."
6. In Jolly George Verghese v. Bank of Cochin, , it has been laid as follows:
"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 claims and no dishonest or bad faith intervenes, the judgment-debtor cannot be confined in jail for non-fulfilments of decertal obligation by coercing him into payment which is violative of Article 21 of the Constitution of India. The proviso to Section 51 emphasizes the need to establish not mere omission to pay but an attitude of refusal as demand verging of dishonest disowning of the obligation under the decree."
7. The respondent/decreeholder besides examining himself as P.W-1 examined one P. Nagaraju as P.W.2 and marked two documents as Exs. A-1 and A-2. P.Ws.1 and 2 stated that the petitioner/Judgment-Debtor received Rs. 9,00,000/- under relinquishment deed. It was suggested to the witnesses examined on behalf of the Decree Holder by the petitioner/Judgment-Debtor that he received only Rs 4,00,000/- under relinquishment deed and that he paid the entire amount to discharge the other debts. No evidence has been placed on record by the judgment-debtor to show that he utilized the amount received by him under relinquishment deed towards discharge of other debts. The Executing Court considered this aspect in arriving at a conclusion that the Judgment-debtor having sufficient means to discharge the debt neglected to pay the same. For better appreciation, I may refer para 8 of the impugned order and it is thus:
"P.W-2 stated that J.Dr is having own house at Saipet, Cuddapah and doing gold business and running chits. The J.Dr got Rs. 9,00,000/- towards his share after executing relinquishment deed. During the cross-examination he stated that he is doing business on commission basis. He stated that the J.Dr informed him that his ancestral house was given to him. He stated that two years ago the J.Dr has got share out of Rs. 9,00,000/-.
It is suggested that since five years the J.Dr. sustained loss in his business and closed the shop. It is suggested that the J.Dr. was given only Rs. 4,00,000/-from the relinquishment amount and he paid the entire amount to discharge the other debts."
8. It is explicit from the evidence brought on record that the Judgment-debtor received Rs. 4,00,000/- under relinquishment deed. No evidence has been placed on record that the amount received was utilized for discharge of any other pressing debts. In the circumstances, I do not see any exception to the finding recorded by the Executing Court that the Judgemnt-debtor having sufficient means to pay the amount due under the decree, has intentionally neglected and avoided to pay the same.
9. It is contended by the Counsel for the petitioner/Judgment-debtor that he was not given show cause notice as contemplated under Order XXI Rule 40. What he means to say is that even after the Executing Court recording a finding of the means of the judgment-debtor, a further notice is required to be given to the judgment-debtor before issuing arrest warrant. Order XXI Rule 40 reads as follows:
"40. Proceedings on appearance of judgment-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.
(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 this 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."
By a close reading of the above referred provision, it is evident that enquiry is contemplated before issuing warrant under Order 21 Rule 38. There is no further show cause notice contemplated under Order XXI Rule 40 after the Court recording a finding that the Judgment-debtor having sufficient means neglected or avoided to pay the amount due under the decree. Therefore, the contention of the Counsel for the petitioner that a further show cause notice is required after recording a finding with regard to the means of the judgment-debtor is devoid of merits.
10. It is submitted by learned Counsel appearing for the petitioner/judgment-debtor that the impugned order does not speak of the period of detention and therefore, it is bad in law. Under Order XXI Rule 40 even after judgment-debtor is brought before the Court under a warrant, the Executing Court is empowered to 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 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. Subsection (1) of Section 58 of the Code 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 the 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.
11. Leaned Counsel appearing for the petitioner by placing reliance on the judgment of our High Court in T. Doraswamy Reddy, v. K. Kodanda Naidu (2 supra) submits that the impugned order is bad, since the period of detention is not mentioned. The period of detention is required to be mentioned while directing arrest under Sub-rule (3) of Rule 40 of Order XXI of the Code.
12. The stage of Sub-rule (3) of Rule 40 of Order 21 of CPC has not yet reached in the case on hand. There are three proformas (Forms. 12, 13, 14 and 14A) in Appendix E of the Code relatable to Order XXI Rules 37, 38, 40; and Sub-rule (2) and proviso to Sub-rule (3) of Rule 40 of Order XXI. Form-12 is the notice to show cause why warrant of arrest should not be issued. Form-13 relates to warrant of arrest in execution. Form-14 relates to warrant of committal of judgment-debtor in jail. Form 14-A relates to order of entrustment of judgment-debtor to the custody of an officer of the Court. The period of detention is required to be mentioned while issuing warrant of committal of judgment-debtor to jail under Order XXI Rule 40. Since the stage of issuing warrant of committal of judgment-debtor to jail has not yet reached in the case on hand, not mentioning the period of detention in the impugned order does not make it ab initio void. In view of the discussion, I find that the Civil Revision Petition is devoid of any merit and the same is liable to be dismissed.
12. Accordingly, this Civil Revision Petition is dismissed.