Karnataka High Court
P.J. Thomas vs Narayanaswami Palani on 17 January, 1992
Equivalent citations: ILR1992KAR561, 1992(2)KARLJ27
ORDER R.V. Vasanthakumar, J.
1. Both the Counsel appearing for the parties consent that the matter be heard on merits and hence the C.R.P. is heard on merits.
2. The main ground in the Revision Petition is in spite of the objections taken regarding Judgment debtor having no means to pay the decretal amount the trial Court has observed that: the Court can order the arrest of the Judgment Debtor without any enquiry as to means and without recording any reason in writing, but after the debtor is brought under arrest the inquiry as to means must be held. The argument of the learned Counsel is that no order for arrest can be made without first recording a finding on the question of means of Judgment Debtor.
3. Now in this case, it has to be made very clear that the Judgment Debtor at every stage of the execution proceedings is trying to object the executability of the decree. Certain few facts are necessary to appreciate the-stand taken by the Judgment Debtor.
4. The Judgment Debtor has suffered a decree in S.C. 2830/86 and the nature of the decree is for arrears of rent. It is to be seen that in spite of the fact that he suffered a decree, the Judgment Debtor has not paid the decretal amount as directed. But he has been taking all sorts of objections as to the executability of the decree on the ground that the same being nullity and also other defences. But, it is to be noted that the question of territorial jurisdiction raised by the Judgment Debtor has been negatived by the trial Court and as well as by this Court in C.R.P. No. 1770/91. The only question that remains to be considered by the trial Court is regarding means. This Court, in a Decision reported in SETH SHAMSUNDER & Co., v. T. MAMU, 1958 Mys L.J. 364 has discussed the scope of Order 21 Rules 37 and 40, CPC:
"The only contention urged on behalf of the petitioners does not appear to be sustainable in law on a consideration of Rule 37 of Order 21 CPC. Rule 37 of Order 21 CPC, no doubt requires issue of notice calling upon the Judgment Debtor to appear before the Court on a day to be specified in the notice and to show cause why he should not be committed to civil prison. But, it does not necessarily follow from the wording of Rule 37 of Order 21 CPC that in the event of the judgment-debtor failing to appear in response to the notice issued under Rule 37 or in the event of his failing to file objections even after appearance, he renders himself liable for being committed to civil prison without any further investigation. On the other hand, the provisions of Rule 40 of Order 21 clearly show that before the judgment-debtor can be committed to civil prison a further procedure has got to be followed by the lower Court, It is required under Sub-rule (1) of Rule 40 that when the judgment-debtor either appears before the Court In obedience to a notice issued by the Court under Rule 37 or is brought before the Court after being arrested, the Court should proceed to hear the decree holder and to take such evidence as may be produced by him in support of his application for execution and then give an opportunity to the judgment-debtor to show cause why he should not be committed to civil prison. It is therefore, seen that under Sub-rule (1) of Rule 40, the court should proceed to hear the decree-holder and take such evidence as he may adduce and is required to give the judgment-debtor an opportunity to show cause why he should not be committed to civil prison. The obligation on the part of the Court to follow this procedure is in no way dependent on as to whether the judgment debtor has not shown cause in response to a notice issued under Rule 37. In Sirkar's commentaries it is stated as follows:
"When the judgment-debtor appears or when he is brought under arrest (although he did not appear to show cause after notice), the Court after compliance with the provisions of Section 55(2), (3) will proceed to make an enquiry under this rule as to whether it is a fit case for sending him to prison. The object of enquiry is to ascertain from evidence whether the judgment-debtor has present means to pay the debt or some substantial part thereof. The decree-holder shall tender such evidence as he may be in possession of in support of his application and the judgment-debtor shall then be heard and any evidence that he may give against the application shall be taken. In deciding whether detention of any person should or should not be ordered the court shall apply the tests provided in provisions (a), (b) and (c) of Section 51 and no judgment-debtor shall be sent to prison unless the court is satisfied that any of the conditions detailed in the proviso to that section exists. The burden of proving the existence of such circumstances has been placed on the decree-holders."
(underlining is mine)
5. It is also to be noted that this Court in B.K. PUTTARAMIAH v. HAJEE IBRAHIM ESSACK & SONS, BY PROPRIETOR, 1958 Mys L.J. 814 has laid down the ambit of Order 21 Rules 37 and 40 CPC. The Court has followed the observations of His Lordship Justice Panchapakesa Ayyar rendered in KUNHIRAMAN v. POOTHERI ILLATH MADHAVAN NAIR, which reads as follows:
"The mandatory provisions of Section 51 must be complied with before arrest is ordered. Where the lower Court does not say that in its opinion the Judgment-debtor has had, since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and has refused or neglected to pay the same the order of arrest is illegal and has to be set aside. Even when the order is passed ex parte, the provisions of the Section must be complied with. Ex parte orders of arrest and orders of arrest after contest are exactly on the same footing and Section 51 makes no difference whatever between the two case."
6. I have perused the order passed by the trial Court and the trial Court on the face of it has not observed the mandatory provisions as contemplated under Order 21 Rules 37 and 40 and Section 51 of the C.P.C., I am of the view that as far as the exercise of powers conferred under Section 51 and Rules 37 and 40 of the C.P.C., is concerned, Court should pass an order of arrest only after the judgment debtor is notified and the decree holder and the judgment-debtors are given opportunity for showing cause why the judgment-debtor should or should not be committed to Civil Prison. This is subject to the exception that if the Court is satisfied that with the object and effect of delaying the execution of the decree the judgment-debtor is likely to abscond and leave the local limits of the jurisdiction of the Court, the Court can order arrest without notice. In the instant case, the observations of the Court below reads as under: -
"The Court can order the arrest of the Judgment-Debtor without any inquiry as to the means and without recording any reason in writing, but after the debtor is brought under arrest the inquiry as to means must be held."
The above said observations of the Court-below suffer from ambiguity. The Courts before exercising the power under Section 51 and Rules 37 and 40 of Order 21 of the Code of Civil Procedure should bear in mind the legal principles enunciated by this Lordship Justice Panchapakesa Ayyar in Kunhiraman v. Illath Madhavan Nair referred above.
7. Hence, the impugned order is set-aside and the trial-Court is directed to proceed in accordance with the legal principles as observed supro.
8. In the result, this Civil Revision Petition stands allowed. No costs.