Madras High Court
M.M.Saleem vs R.Praveen Kumar Reddy on 16 July, 2010
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED:16.07.2010 CORAM THE HONOURABLE Mr. JUSTICE T.S.SIVAGNANAM CRP(NPD) No.1328/2004 & C.M.P.No.10772/2004 M.M.Saleem ... Petitioner/Judgment Debtor/Defendant Vs. R.Praveen Kumar Reddy ... Respondent/Decree Holder/Plaintiff Prayer: Civil Revision Petition filed under Article 227 of Constitution of India filed against the order of arrest dated 09.03.2004 passed in E.P.No.1805 of 2002 by the Hon'ble IX Assistant Judge City Civil Court, Chennai. For Petitioner/Judgment Debtor : Mr.C.Ravichandran For Respondent/Decree Holder : Mr.P.Subba Reddy ORDER
This revision is by the Judgment-debtor/respondent in E.P.No.1805/2002 on the file by the IX Assistant Judge City Civil Court, Chennai.
2. The respondent/decree-holder had filed O.S.No.11006/1996 for recovery of money and the suit was decreed by Judgment and decree dated 12.03.2002 and to realise the decree amount, the respondent filed E.P.No.1805/2002 and sought the assistance of the Court for arrest and detention of the Judgment-debtor under Order 21 Rule 37 & 38 CPC. The petitioner/Judgment-debtor filed a counter in the execution petition stating that he has not been served with the copy of the means affidavit filed along with the execution petition and that it is mandatory on the part of the decree-holder to serve copy of such affidavit. It was further stated that his business has deteriorated and he is penniless and his mother is taking care of his family from the pension received by her. The Execution Court by its order dated 09.03.2004, ordered arrest of the petitioner. The Executing Court by relying upon the decision of this Court in Chinnaraj and another Vs. Kanthasamy 2000 (IV) CTC 481, held that there is no necessity to cause an enquiry or afford any opportunity to the Judgment-debtor and proceeded to order arrest. Aggrieved by such order, the petitioner is before this Court.
3. The learned counsel appearing for the petitioner would submit that the Executing Court committed an error in invoking the provisions of Order 21 Rule 37 & 38 CPC, without any material particulars especially when, there is no allegation made by the respondent/decree holder that the petitioner/Judgment-debtor has committed any act with the object, of delaying the execution of the decree or that he is likely to abscond or leave the local limits of the jurisdiction of the Court. It is further contended that the Executing Court failed to consider the counter filed by the petitioner, wherein it has been specifically stated that the means affidavit has not been served. Further, it is submitted by the learned counsel that the Judgment relied on by the Executing Court in the case of Chinnaraj and another Vs. Kanthasamy 2000 (IV) CTC 481, referred supra, is not applicable to the facts and circumstances of the present case and the Executing Court has mechanically ordered arrest without rendering a specific finding alleging that the petitioner had intention to delay the execution of the decree. Further, it is contended that the Court below ought to have read Order 21, Rule 37, 38 & 40 in conjunction and not in isolation. The learned counsel relied on the decisions of this Court in support of his contentions: M.Muthuswamy Vs. Supasri Chit Funds, Coimbatore and another, 2000 (II) CTC 168, N.C.Duraisamy Naidu Vs. K.Pappaiya Naidu, 2007 (3) CTC 67 and the decision in Parkash Chand V. Punjab National Bank and others, AIR 1999 Punjab and Haryana 79.
4. The stand of the respondent is by relying upon the decision of this Court in Chinnaraj and another, referred supra and that this Court has held that there is nothing in the Code, which indicates or compels the Executing Court either to give an opportunity to the Judgment-debtor or the decree-holder to adduce evidence to have a full-fledged enquiry and record its reasons in writing before even it passes an order of arrest against the Judgment-debtor. Therefore, it is contended that the order of the Court below is perfectly legal and valid.
5. I have heard the learned counsels for the parties and given my anxious consideration to the issue raised in the present revision. Order 21 Rule 37(1) provides that where an application is for execution of a money decree by the arrest and detention in civil prison, the Court instead of issuing a warrant of arrest to the Judgment debtor, 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. In terms proviso to Rule 37 (1) such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise that, with the object or effect of delaying the execution of the decree, the Judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court. Rule 40 states, 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 money decree, Court shall proceed to hear the decree-holder and take all such evidence and then give an opportunity to the Judgment debtor to show cause why he should not be committed to the civil prison. Section 51 of the code states that before an order of arrest and detention in prison is made, the Court should give an opportunity to the Judgment-debtor for showing cause as to why he should not be committed to prison for reasons to be recorded in writing is satisfied of any of the requirements prescribed in clauses a, b or c of the proviso. This Court in Namachivaya Mudaliar Vs. Manickavelu and Co, AIR 1972 Mad 292, held that after reading section 51 and Rules 37 & 40 of Order 21 CPC, it is clear that the proviso to Section 51 is applicable and the Court is bound to record in writing its specification of one of the conditions prescribed in the Section, only when it commits a person to prison and not when issuing a warrant of arrest. This decision was referred to by the Division Bench in P.G. Ranganatha Padayachi V. Mayavaram financial Corporation, AIR 1974 Mad 1, and after discussing the law on the subject held thus:-
"10. To sum up therefore, the order of arrest passed by the executing Court without giving a finding regarding the means of the judgment-debtor to pay the decree amount is not one without jurisdiction as the order of arrest is only under Order XXI Rule 37(2). Needless to say that the executing Court should necessarily go into the question of means of the judgment-debtor to pay the decree amount after the latter is arrested and brought to Court and before deciding whether the judgment-debtor has to be committed to prison or not in execution of the decree."
6. The above referred decision in the case of Namachivaya Mudaliar and P.G. Ranganatha Padayachi, were relied on by this Court in the case of Chinnaraj and another, referred supra and this Court held that there is nothing in the Code, which compels the Court to give an opportunity to the Judgment debtor or the decree-holder to adduce evidence and record its reasons in writing before even passing an order of arrest against the judgment-debtor. Though, the executing Court referred to the decision of this Court in the case of Chinnaraj and another, referred supra, the order passed by the executing Court does not assign any reason that the Court is satisfied that there are prima facie material before the Court for proceeding under order 21 Rule 37. This has to be culled out only from the order as the order has to speak for itself and every decision should be supported by reasons. The power under Rule 37 is not just an innocuous matter, as the decision whether to issue of warrant of arrest or to issue a show cause to the Judgment-debtor as to why he should not be arrested are matters having an impact on human dignity. The Hon'ble Supreme Court in Jolly George Varghese and another V. The Bank of Cochin, AIR 1980 SC 470 had observed how gruesome and obnoxious is the remedy of incarcerating a debtor for an unpaid debt under modern conditions and in the contest of human rights. As observed earlier, perusal of the order passed by the executing Court its clear that apart from referring to the decision of this Court in the case of Chinnaraj and another, referred supra, the Court has not recorded its satisfaction and mechanically proceeded to order arrest. It is relevant to note that in the counter affidavit, the petitioner/Judgment debtor has specifically stated that the copy of the means affidavit filed along with the execution petition was not served. Therefore, even going by the language of Rule 37 (1) of Order 21, the satisfaction of the Court is a sin-qua-non for issuing an order of arrest. The term "satisfied" used in the proviso cannot be held to be an empty expression especially, when the matter involves human rights. This satisfaction of the Court to invoke the power should find place in the order and it should be apparent from the face of the record and therefore, it is necessary for the Court to record certain reasons as to why it is satisfied that the power under the proviso to Rule 37(1) of Order 21 CPC has been invoked. An order without reasons has been held to be an order in violation of the principles of natural justice. This Court in K.AL.R.M. R.M.Alagappan Vs. Rajaguru & Co., (1985) I MLJ 331, after referring to the Judgments of the Hon'ble Supreme Court in Jolly George Varghese and another V. The Bank of Cochin, AIR 1980 SC 470, Rama Narayan Agarwal v. State of U.P. (1983) 4 SCC 276, held thus:-
"6..... In this case, nothing is found in the impugned order that the judgment-debtor is having funds or that he is purposely delaying to pay the decretal amount. Under these circumstances, I am of the view that the impugned order of the executing Court has to be set aside and it is accordingly set aside and this civil revision petition is allowed."
7. In view of the above reasons, this Court is satisfied that the order passed by the executing Court is to be set aside and the matter is to be remanded to the executing Court for fresh consideration.
8. In the result, the Civil Revision Petition is allowed and the impugned order is set aside and the matter is remanded to the executing Court for fresh consideration. Since, the Executing petition is in the year 2002, the Executing Court is requested to dispose of the executing petition as expeditiously as possible preferably within a period of four months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. No costs.
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