Gujarat High Court
Jamnadas Gurumukdas Jethwani vs The Sahyog Co Operative Credit Society on 1 July, 2025
NEUTRAL CITATION
C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION No. 8574 of 2025
With
R/SPECIAL CIVIL APPLICATION No.8575 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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JAMNADAS GURUMUKDAS JETHWANI & ORS.
Versus
THE SAHYOG CO OPERATIVE CREDIT SOCIETY & ANR.
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No.1,2,3
MR. HJ KARATHIYA(7012) for the Petitioner(s) No.1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 01/07/2025
COMMON ORAL JUDGMENT
1. By way of these writ applications, the petitioners have challenged the common order passed below Ex. 14 & Ex.1 respectively by the Executing Court in execution filed against them by respondent No.1. As the facts are common in both these writ applications, they were heard together and are being decided by way of this common order. Page 1 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025
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2. At the outset, learned Advocate Mr. S. P. Majmudar appearing with learned Advocate Mr. H. J. Karathiya submitted draft amendment in Special Civil Application No.8575 of 2025, whereby it is submitted that during the pendency of the writ application, petitioner No.3 was arrested by police official in pursuance of the impugned order passed by the Executing Court. The draft amendment is hereby allowed, which is to be carried out. Likewise, year of execution petition number wrongly mentioned in prayer clause of SCA No. 8574 of 2025 i.e. 2025 instead of 2024 then, it is order to be amended accordingly. Amendments be carried out accordingly in respective matters.
3. The writ application being SCA No.8574 of 2025 is filed by the petitioners, seeking the following reliefs:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus/ certiorari or a writ in the nature of mandamus/certiorari or any other appropriate writ, order directions quashing and setting aside impugned order dated 05.04.2025 passed by Additional Civil Judge, Dahod, below Exh.14 in Regular Execution No.17 of 2024 (at ANNEXURE - F) in the interest of justice;
(B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the operation, implementation and execution of the order dated 05.04.2025 passed by Additional Civil Judge, Dahod, below Exh.14 in Regular Execution No.17 of 2024 (at ANNEXURE -Page 2 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025
NEUTRAL CITATION C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025 undefined F) in the interest of justice;
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
4. The writ application being SCA No.8575 of 2025 is filed by the petitioners, seeking the following reliefs:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus/ certiorari or a writ in the nature of mandamus/certiorari or any other appropriate writ, order or directions quashing and setting or aside impugned order dated 05.04.2025 passed by Additional Civil Judge, Dahod, below Exh.1 in Regular Execution No.17 of 2024 (at ANNEXURE - F) in the interest of justice;
(B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the operation, implementation and execution of the order dated
05.04.2025 passed by Additional Civil Judge, Dahod, below Exh.14 in Regular Execution No.17 of 2024 (at ANNEXURE - F) in the interest of justice;
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.
15BB. During pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to release the petition no.3 herein, who is arrested pursuant 05.04.2025" to the impugned order dated"
5. The parties will be referred to as per their original position before the Trial Court.Page 3 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025
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6. Short Facts:
6.1. The petitioners herein are original defendant Nos.2 to 4, whereas respondent No.1 is the original plaintiff and respondent No.2 is original defendant No.1 of Summary Lavad Case No.BONPAN2023000107 filed before the Board of Nominees at Ghodhra. The plaintiff is a Co-operative Credit Society, appears to have given a loan in favour of defendant No.1, and defendant Nos.2 to 4 stood as guarantors/surety to such loan. The defendant No.1 having committed default in repaying the loan, the plaintiff had filed the aforesaid summary suit for recovery of the amount against all, which was decreed against all the defendants jointly and severally by the Court concerned on 28th March 2024, thereby the defendants were directed to pay Rs.20,37,490/- with 12% interest from 1st July 2023 till its payment albeit, jointly & severally. It is undisputed that none of defendants have questioned such decree by filing appeal thereby, it become final.
6.2. When the defendants have not made any payment as per the decree, the plaintiff filed Execution Application No.17 of 2024 against them. As per the Execution Application, the plaintiff has requested the Court to auction movable and immovable properties of defendants, thereby to recover the decreetal Page 4 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025 NEUTRAL CITATION C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025 undefined amount and in failure of recovery of such amount from them, the defendants may be sent to civil jail.
6.3. The defendant Nos.2 to 4 - the petitioners herein, have filed common objection below Exh.14 in execution, thereby contended that defendant No.1 is a principal borrower who is ready and willing to pay the decreetal amount, which can surely be realized/recovered by auctioning the mortgaged property and if there is any shortfall in the decreetal amount remain thereafter, may be recovered from defendant Nos.2 to
4. It has been empathetically stated that unless and until all properties of defendant No.1 can be sold out, there would not be any liability of the guarantors arise and as such, execution requires to be rejected against them.
6.4. The defendant No.1 has also filed his objection below Exh.16 contending, inter alia, that he is not in a position to repay the entire decreetal amount in one go and due to incurred losses in his business, there was default in repaying the loan amount, which may be realized from the auctioning of his mortgaged property.
6.5. The Executing Court appears to have granted sufficient time to all defendants to pay/deposit the decreetal amount, which is observed in the impugned order itself, but when the defendants have not deposited the decreetal amount, then Page 5 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025 NEUTRAL CITATION C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025 undefined after, by way of a common order, it rejected the objection of defendant Nos.2 to 4 filed below Exh.14 and passed common order below Exh.1 & 14, thereby ordered 6 months' simple imprisonment to the defendants by directing plaintiff (Decree Holder) to deposit amount as per Order 21 Rule 39 of CPC for maintenance of judgement debtors i.e. petitioners herein. It has been informed to this Court that such amount is already deposited by plaintiff.
7. Feeling aggrieved and dissatisfied with the impugned common order, the defendant Nos.2 to 4 have preferred the aforesaid writ applications.
8. Submissions of the petitioners - defendant Nos.2 to 4:
8.1. Learned Advocate Mr. Majmudar would submit that the impugned order is ex facie illegal, erroneous, without jurisdiction and requires to be quashed and set-aside. It is submitted that impugned order is not only unreasoned but was passed contrary to the provisions of law and requires to be interfered with by this Court.
8.2. Learned Advocate Mr. Majmudar would submit that when the decreetal amount can be realized from the mortgaged property, instead of auctioning mortgaged property, the Executing Court has erroneously passed an order of civil imprisonment to the petitioners.Page 6 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025
NEUTRAL CITATION C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025 undefined 8.3. Learned Advocate Mr. Majmudar would further submit that there was no reason assigned by the Executing Court in regards to not auctioning the mortgaged property, thereby committed serious error of law which requires to be corrected by this Court while exercising its power under Article 227 of the Constitution of India.
8.4. Learned Advocate Mr. Majmudar would further submit that defendant Nos.2 to 4 are guarantors of loan, whereas defendant No.1 is the principal borrower who is required to repay the loan amount and when, he has shown his willingness to pay the amount in installments, the order passed for simple imprisonment of the guarantors is too harsh and not sustainable in law.
8.5. Learned Advocate Mr. Majmudar would further submit that the Executing Court has not followed the mandatory procedure as prescribed under Section-51 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"), thereby committed a jurisdictional error inasmuch as without any application made by plaintiff requesting the Executing Court to pass an order of civil imprisonment, the Executing Court has passed such an order.
8.6. Learned Advocate Mr. Majmudar would further submit that before passing order of civil imprisonment, the Executing Page 7 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025 NEUTRAL CITATION C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025 undefined Court was required to have satisfied itself that the judgment- debtor has refused and negligent to pay the decreetal amount and/or there are other contingencies as shown in proviso under Section-51 is germane. It is submitted that no such satisfaction is recorded by the Executing Court while passing impugned order and as such, the impugned order is bad in law.
8.7. To buttress his argument, he has relied upon the decision in Bhudev Mallick Alias Bhudeb Mallick and anr. V/s. Ranajit Ghoshal and ors. reported in (2025) SCC OnLine SC 360 [(2025) 1 G.L.H. 553].
8.8. Making the above submissions, he prayed to allow these present writ applications.
9. No other and further submissions are made.
10. Heard learned Advocates for the petitioners at length.
POINT FOR DETERMINATION
11. Whether, in the facts and circumstances of the case, the Executing Court has committed any jurisdictional error by ordering civil imprisonment to the defendants by overlooking Section-51 read with Order 21, Rule 11-A of the CPC? ANALYSIS
12. The facts which are narrated hereinabove are not in dispute. Page 8 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025
NEUTRAL CITATION C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025 undefined The defendant Nos.2 to 4 stood as guarantors of loan obtained by defendant No.1, who committed a default in repaying such loan. The money decree was passed against all the defendants jointly and severally to be paid by them jointly and severally. When they have not paid such decreetal amount, the execution application was filed against them.
13. The execution application clearly states that the decreetal amount be realized from the movable and immovable properties of the defendants and in failure of recovery such amount, they be sent to civil imprisonment.
14. The defendants No.2 to 4 have filed their common objection (Ex.14) contending inter alia that they had stood as guarantors and plaintiff is required to recover the decreetal amount by way of auctioning the mortgaged property and realizing it from the mortgaged property and thereafter any shortfall remains, they are liable to pay such balance amount otherwise not. Such defence is not at all available to defendants inasmuch as liabilities of guarantors are co- extensive with principal borrower and so also held by trial Court being jointly and severally with the Principal Borrower. Further, the law on this issue is well settled, which cannot be disputed and in fact was not disputed by learned counsel Mr. Majmudar.
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15. It would be apt to refer and rely upon decision of Hon'ble Supreme Court of India in a case of United Bank Of India v/s Satyawati Tondon And Others reported in (2010) 8 SCC 110, wherein held thus:
"37. The question whether the appellant could have issued notices to respondent No.1 under Section 13(2) and (4) and filed an application under Section 14 of the SARFAESI Act without first initiating action against the borrower i.e., respondent No.2 for recovery of the outstanding dues is no longer res integra. In Bank of Bihar Ltd. v. Damodar Prasad, AIR 1969 SC 297 : (1969) 1 SCR 620, this Court considered and answered in affirmative the question whether the bank is entitled to recover its dues from the surety and observed:
"6........It is the duty of the surety to pay the decretal amount. On such payment he will be subrogated to the rights of the creditor under Section 140 of the Indian Contract Act, and he may then recover the amount from the principal. The very object of the guarantee is defeated if the creditor is asked to postpone his remedies against the surety. In the present case the creditor is banking company. A guarantee is a collateral security usually taken by a banker. The security will become useless if his rights against the surety can be so easily cut down."
38. In State Bank of India v. M/s. Indexport Registered and others, (1992) 3 SCC 159, this Court held that the decree-holder bank can execute the decree against the guarantor without proceeding against the principal borrower and then proceeded to observe:
"10......The execution of the money decree is not made dependent on first applying for execution of the mortgage decree. The choice is left entirely with the decree-holder. The Page 10 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025 NEUTRAL CITATION C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025 undefined question arises whether a decree which is framed as a composite decree, as a matter of law, must be executed against the mortgage property first or can a money decree, which covers whole or part of decretal amount covering mortgage decree can be executed earlier. There is nothing in law which provides such a composite decree to be first executed only against the [principal debtor]."
39. In Industrial Investment Bank of India Limited v. Biswanath Jhunjhunwala, (2009) 9 SCC 478, this Court again held that the liability of the guarantor and principal debtor is co-extensive and not in alternative and the creditor/decree-holder has the right to proceed against either for recovery of dues or realization of the decretal amount.
40. In view of the law laid down in the aforementioned cases, it must be held that the High Court completely misdirected itself in assuming that the appellant could not have initiated action against respondent No.1 without making efforts for recovery of its dues from the borrower
- respondent No.2."
(emphasis supplied)
16. Thus, considering case on hand and applying position of law stand as on date, the defendant no. 2 to 4 being guarantors cannot insist upon the Court that first mortgage property to be sold then after, they be called upon to pay balance decreetal amount. When liability of defendants fixed by trial Court being joint & several, and defendant Nos. 2 to 4 stood as guarantors of loan in question, as per said position of law, it would be choice of Decree Holder (D.H.) - plaintiff to get it Page 11 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025 NEUTRAL CITATION C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025 undefined recover entire decreetal amount from any of defendants i.e. Judgement Debtor including any of guarantors.
17. It has been clearly observed in the impugned order that despite giving sufficient time and opportunity to the defendants to pay the decreetal amount during the pendency of the execution, they have failed and neglected to pay the decreetal amount. So, the Executing Court has no other option left but to pass the impugned order.
18. Learned Advocate Mr. Majmudar has raised ground that touches upon alleged procedural irregularity and illegality committed by the Executing Court, thereby not satisfying itself before issuing order of civil prison, which is sine qua non to pass order of civil imprisonment to the defendants. When this Court has put a specific query as regards such ground was either taken before the trial court or in the present writ applications, learned Advocate Mr. Majmudar candidly replied that no such ground was ever raised before the executing court and/or before this Court in the present writ applications. According to him, it is a pure question of law that can be raised by the petitioners, thereby, he raised it during the course of his submission.
19. This Court outright reject such response. The reply of petitioners is not well-founded inasmuch as there is nothing Page 12 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025 NEUTRAL CITATION C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025 undefined on record to show that the executing court has not satisfied itself before passing the impugned order. As regards non- payment of the decreetal amount by the defendants is per se visible from the record so available to this Court that no efforts were made by any of petitioners to either deposit decreetal amount and or endeavour made to see that mortgage property can be easily realized by Decree Holder. The plain reading of reply/objection of petitioners (Ex.14) would indicate that they do not wish to pay decreetal amount first unless everything realized from defendant No.1 - principal borrower, such an act of defendants No. 2 to 4 - petitioners herein would nothing but a refusal and/or neglect to pay decreetal amount that too granting several opportunities by Executing Court during pendency of execution. In light of above, it would not be acceptable that Court has not satisfied itself before passing an order of civil prison.
20. According to this Court, such facts needs to be raised by the petitioners by way of proper pleading and there should be specific ground must be raised before the executing court and/or before this Court, but in absence of such pleading and or any incriminating material on record to take any different view than taken by Executing Court, in such circumstances, Page 13 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025 NEUTRAL CITATION C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025 undefined such plea cannot be appreciated and accordingly not accepted.
21. Be that as it may, to analyze such submissions of learned Advocate Mr. Majmudar and having limited access of the documents of the execution which are placed on record before this Court along with the writ applications, the relevant provisions of the CPC needs to be referred i.e. Section-51 and Order 21, Rule 11 and Rule 11-A of the CPC read as under:
"51. Power 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 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 matter 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 me 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 me oecrec,- (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 Page 14 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025 NEUTRAL CITATION C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025 undefined transterred, concealed, or removed any part of his property, or committed any other act of bad laith in relation to his property; or
(b) that the judgment-debtor nas, or has had since the date of the decree, the means io 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 Cl. (b), there shall be left out of account any property which, by or under any law or custom havinq the force of law for the time being in force is exempt from attachment in execution of the decree.] Uttar Pradesh-Clause (bb)was added after Cl. (b) by U.R Act 24 of 1954 as under: " (bb) by transfer other than sa^by attachment or without attachment of any property"."
"Order 21, Rule 11. Oral application :-
(1) Where a decree is for the payment of money the Court may, on the oral application of the decree-holder at the time of passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant if he is within the precincts of the Court.
(2) Written application-Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely-
(a) the number of the suit;Page 15 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025
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(b) the names of the parties;
(c) the date of the decree;
(d) whether any appeal has been preferred from the decree;
(e) whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree;
(f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results;
(g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed;
(h) the amount of the costs (if any) awarded;
(i) the name of the person against whom execution of the decree is sought; and
(j) the mode in which the assistance of the Court is required whether-
(i) by the delivery of any property specifically decreed; 1[(ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of any property;]
(iii) by the arrest and detention in prison of any person; (iv) by the appointment of a receiver;
(v) otherwise, as the nature of the relief granted may require. (3) The Court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree. Page 16 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025
NEUTRAL CITATION C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025 undefined "Order 21, Rule 11A. Application for arrest to state grounds :- . Where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for.]"
22. The bare reading of the proviso of Section-51 would indicate that in a case of money decree, before order of civil imprisonment to be passed by the executing court, Court itself has to be satisfied that the judgment-debtor, with the object or effect of obstructing or delaying the execution of decree, is likely to abscond or leave the jurisdiction of the court or is likely to transfer, removed any part of his property, or has acted in bad faith and/or the judgment-debtor since the date of the decree means to pay the amount of decree or substantial part thereof, but refuses or neglects or has refused or neglected to pay decree. Likewise, as required under Order 21, Rule 11-A of the CPC, the ground of arrest to be mentioned in the application.
23. Prima facie, in the case on hand, defendant Nos.2 to 4, who stood as guarantors, appear to have refused and/or neglected to pay the amount of decree by throwing the burden upon defendant No.1, which can be seen from their objections filed below Exhibit 14. It is not a case of defendant Nos.2 to 4 that they have no means to pay the decreetal amount. The Page 17 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025 NEUTRAL CITATION C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025 undefined sufficient opportunity was already given to them, which is observed in the impugned order, which ultimately constituted their obdurate disrespect to decree, having refused and neglected to pay decreetal amount. The executing court has also observed that just to delay the execution, frivolous objections came to be filed by defendant Nos.2 to 4 and as such it cannot go behind the decree and when the liability of all the defendants is joint and several, defendant Nos.2 to 4 cannot be allowed to insist that the decreetal amount to be first realized from defendant No.1 by auctioning the mortgaged property.
24. The conduct of defendant Nos.2 to 4 would itself show that they have refused and neglected to pay the decreetal amount, which is also coming forth from the impugned order. When defendant Nos.2 to 4 have not specifically raised such an issue either before the executing Court or in the present writ applications, the oral submission made by learned Advocate Mr. Majmudar, having placed reliance upon the decision of the Honourable Supreme Court in the case of Bhudev Mallick (supra), would not entitled defendant Nos.2 to 4 to contend that the impugned order is erroneous and/or perverse, having been passed contrary to Section-51 of the CPC.
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25. The execution application is given in writing and the ground of arrest is also, though briefly, but stated in it. The plaintiff has specifically stated in execution that if the decreetal amount is not realized from the defendants, they be sent to civil imprisonment.
26. According to me, the ground of arrest is already mentioned in the execution application inasmuch as it has been clearly stated that if defendants default to pay decreetal amount and it cannot be realized from them, they be sent to civil imprisonment. This ground would be self-sufficient to order civil imprisonment of defendants and it would amount to compliance of Order 21 Rule 11-A of CPC as there was no other reasons/grounds available to send defendants to civil prison except non-compliance of money decree by refused/neglected to pay it.
27. So far as the decision of the Honourable Supreme Court of India in Bhudev Mallick (supra), there is no cavil that before passing any order of civil imprisonment, the civil court will have to not only be satisfied as per the proviso to Section-51 of CPC, but the ground of arrest is also to be mentioned in the execution application as per Order 21 Rule 11-A of the CPC. It appears from the facts before the Honourable Apex Court, neither such satisfaction was recorded nor such ground of Page 19 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025 NEUTRAL CITATION C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025 undefined arrest was mentioned; rather, without giving an opportunity to the judgment-debtor to comply with the decree, he was sent to civil imprisonment and in that peculiar facts and circumstances of the case, the Honourable Apex Court has set aside the order of civil imprisonment.
28. Whereas, as observed herein above, in the present case, the facts which are eloquent and self-sufficient are enough to hold defendant Nos.2 to 4 guilty of not honouring the money decree passed by a competent court against them. As such their conduct would be clearly made out the case that they have refused and neglected to pay the decreetal amount. In such circumstances, the executing court having so satisfied, when ordering the civil imprisonment of the defendants, one cannot find fault with such order.
29. Before parting, it is now well settled legal position of law that mere error of law in passing any order by the Civil Court would not be a ground to interfere with the order passed by the Civil Court while exercising power under Article 227 of the Constitution of India by this Court unless such order is either erroneous, perverse, arbitrary, and or contrary to the provisions of law and or made without jurisdiction. The petitioners could not made out any of such grounds in their present writ applications and as such none of the said Page 20 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025 NEUTRAL CITATION C/SCA/8574/2025 JUDGMENT DATED: 01/07/2025 undefined ingredients have been found present in the case on hand. [See - (i) Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 (Para 6 and 7) and (ii) Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and 16)] CONCLUSION
30. In the upshot of the aforesaid discussions, observations and reasons, the only conclusion reached by this Court that there is no jurisdictional error committed by the executing court while passing the order of civil imprisonment to the defendants, thereby sending them to Civil Jail for 6 months.
31. The impugned order does not suffer from any illegality or irregularity, and as such, there is no gross error of law committed by the executing court while passing the order, whereby no interference requires of this Court while exercising its power under Article 227 of the Constitution of India.
32. In light of the above, the present writ applications lack merit and require to be rejected, which are hereby rejected. No order as to costs.
(MAULIK J.SHELAT,J) Nilesh Page 21 of 21 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 22:27:58 IST 2025