Andhra HC (Pre-Telangana)
K. Vijayakumar vs N. Gururaja Rao on 13 April, 2004
Equivalent citations: AIR2004AP435, 2004(3)ALD702, 2004(3)ALT476, AIR 2004 ANDHRA PRADESH 435, (2004) 3 ANDHLD 702, (2004) 4 ICC 525, (2004) 3 ANDH LT 476
ORDER D.S.R. Varma, J.
1. Heard both sides.
2. This civil revision petition is directed against the order and decree, dated 22.10.2003, passed by the Additional Senior Civil Judge at Kurnool, allowing E.P. No. 258 of 2002 in O.S. No. 53 of 2001 filed under Order 21, Rule 38 of the Code of Civil Procedure seeking arrest of the judgment-debtor.
3. The petitioner herein is the judgment-debtor and the respondent is the decree-holder.
4. For the sake of convenience, the petitioner and the respondent will be referred to as "the judgment-debtor and decree-holder" respectively.
5. The facts, which are not in disputes, are that the judgment-debtor suffered a decree in the said suit and the decree-holder filed the present E.P., seeking arrest and commit the judgment-debtor to civil prison.
6. The judgment-debtor filed counter-affidavit stating that he has been working as an officer in Sangameshwara Grameena Bank at Mahaboobnagar; that he is getting a sum of Rs. 15,000/- per month towards salary; that the decree-holder ought to have filed an application for attachment of the salary of the judgment-debtor and that only with an intention to cause harassment to the judgment-debtor, the decree-holder has filed the present E.P., seeking arrest and commit the judgment-debtor to civil prison. It is further stated in the counter-affidavit that the judgment-debtor has no mala fide or wilful intention to avoid the payment and that the decree may be executed by attaching his salary.
7. The contentions of the decree-holder and that the judgment-debtor was working as an officer in Sangameshwara Grameena Bank at Mahaboobnagar; that the judgment-debtor owns a house at Kurnool and had sufficient means to pay the E.P., amount in lumpsum; that since the judgment-debtor had been postponing the payment in spite of repeated demands, the present E.P., is filed seeking arrest of the judgment-debtor and commit him to the civil prison.
8. The Court below having gone into the merits of the case and basing on the evidence on record, both oral and documentary, came to the conclusion that the judgment-debtor was having sufficient means to pay the E.P., amount and since he neglected to pay the same, the judgment-debtor was liable to be arrested and be committed to the civil prison for realisation of the E.P., amount.
9. It is the contention of the learned Counsel for the judgment-debtor that since it was the specific case of the judgment-debtor that he was an officer in the Grameena Bank and since he was agreeable for attachment of his salary for realisation of the decretal amount, the Court below was not justified in ordering arrest of the judgment-debtor.
10. The said contentions were repelled by the learned Counsel for the decree-holder on the ground that the judgment-debtor in spite of having sufficient means by owning a house at Kurnool, not substantially and being an officer of Grameena Bank, he neglected to pay the decretal amount having sufficient means.
11. The Court below passed the impugned order after distinguishing a decision of this Court reported in Kalindindi Rama Raju v. Vijaya Bank, 2001 (2) An.WR 184 (AP), and also distinguished another judgment of this Court in Vemanarayana v. Sakku Bai, 1994 (4) ALT 422, which was referred to by the learned Judge of this Court in Kalindindi Rama Raju's case (supra).
12. In my view, the learned Judge of this Court (Justice P.S. Narayand) had elaborately considered all the aspects and settled the issue placing reliance on the judgment rendered by the Supreme Court in Jolly George Varghese v. Bank of Cochin, and Vemanarayana's case (supra) and also the judgments of various other High Courts and Supreme Court and formulated certain guidelines to be borne in mind while dealing with the applications filed under Order 21, Rule 37. No reiteration, in view of the observations made in the two cases cited supra, is necessary,
13. In K. Karunakar Shetty v. Syndicate Bank, Manipal, , the Karnataka High Court, after following Jolty George Varghese's case (supra), made the following observations at Para No-5, which are as under, for ready reference:
"In this Court, learned Counsel for the decree-holder has fairly submitted that the judgment-debtor is not without means inasmuch as he has a share in the joint family property. If there is a decree against the coparcener or a sharer, there is a mode of execution available to the Bank. The Bank should pursue that mode to secure the individual interest in the immoveable property attached and sold. Sending the judgment-debtor to prison for a period of three months, less or more, is not a way of realizing the decretal amount. Bank's business is to collect the Moneys due to it and ensure repayment of loan or decretal amount and not prosecute a 'proceeding which will deprive a person' liberty. The Bank js a statutory body and should act with great responsibility in realizing its amounts. Sending to prison is not a fair means of realizing the loan advanced."
14. From the above, the view of the Karnataka High Court is obvious to the effect that when there is an alternative source available for the decree-holder to recover certain money, the detention of the judgment-debtor is not reasonable and fair.
15. In fact, this judgment is also referred to in Kalindindi Rama Raju's case (supra). But, the above view of the Karnataka High Court, which is extracted above, was not specifically referred to. But, it could be seen from the principles laid down by the learned Judge of this Court in Kalidindi Rama Raju's case (supra) that the said judgment was also taken note of.
16. A Division Bench of this Court in Sastry v. Bank of India, 1978 (2) APLJ 335, Order 21, Rule 37 was elaborately dealt with and observed as under:
"What is therefore manifest from the foregoing provisions of law is--
(1) The Court has power conferred upon it under Section 51 of the code to order the execution of a decree for the payment of money by arrest and detention of the judgment-debtor in prison on the application of a decree-holder;
(2) The condition precedent for the exercise of that power is that it should be prescribed by the Court's affording an opportunity to the judgment-debtor of showing cause as to why he should not be committed to civil prison;
(3) The Court should be satisfied, for reasons to be recorded in writing 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 that the judgment-debtor has refused or neglected to pay the same;
(4) The Court shall, instead of issuing a warrant for the arrest of the judgment-debtor, shall have to issue notice calling upon the judgment-debtor to appear before the Court and show-cause why he should not be committed to the civil prison;
(5) Where no such appearance is made in obedience to the notice and if the decree-holder so requires, it is rendered obligatory on the part of the Court to issue a warrant for the arrest of the judgment-debtor."
17. From the above, it could be seen that it was specifically pointed out that the executing Court should be satisfied that since the date of the decree, the judgment-debtor in spite of having substantial means has refused or neglected to pay the same, an order of arrest can be ordered.
18. The above aspect was more analytically discussed by the Supreme Court in Jolly George's case (supra). Reiteration of the same is not necessary inasmuch as the same was extracted in Kalindindi Rama Raju's case (supra).
19. Hence, having regard to the judgments, referred to supra, the learned Judge of this Court in Kalindindi Rama Raju 's case (supra) formulated the principles, for ready reference, which are as under:
"(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 decree-holder 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."
20. Though the learned Judge of this Court with all modesty expressed that the said guidelines are only illustrative but not exhaustive, I am of the view that the above guidelines are not only illustrative but also near exhaustive.
21. From the above, it is clear that the executing Court has the power to execute the decree in any of the methods, as mentioned in Section 51 of the Code of Civil Procedure.
22. In this context, it is necessary to look at Clause (b) of proviso to Section-51 of the Code of Civil Procedure, which is as under:
"Section 51: .................
(a)...........................
(b).........................
(c)........................
(d)...........................
(e)........................
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)...........................;
(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.
(c)..........................
Explanation:.........................."
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 amount 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.
25. From the above, it is clear that deliberate refusal or negligence on the part of the judgment-debtor in paying the decretal amount is a ground for ordering arrest.
26. Coming to the case on hand, it is not in dispute that the said E.P., was filed after immediately four months of passing of the decree. The judgment-debtor came forward by filing a counter-affidavit stating that he has no other immovable property; that he was an officer in the Grameena Bank at Mahaboobnagar drawing a salary of Rs. 15,000/- per month and further that he is willing to have his salary attached instead of ordering his detention into civil prison.
27. The Court below also recorded a finding that owning of other house property by the judgment-debtor was not established. Therefore, from the impugned order of the Court below it appears that on the sole ground that the judgment-debtor was an officer in the Grameena Bank and had sufficient means to pay the decretal amount and since the same was not paid, he is liable to be arrested.
28. The Court below, in my considered view, was in serious error in interpreting the Clause (b) to proviso of Section 51 of the Code, referred to above, in order to distinguish the judgment of this Court in Kalindindi Rama Raju's case (supra).
29. The aspect of deliberate refusal or negligence has to be necessarily established by the decree-holder to the satisfaction of the executing Court.
30. It is not in dispute that E.P., was filed immediately after four months from the date of passing of the decree. The judgment-debtor categorically discloses in his counter-affidavit in the E.P., about his salary particulars and expressed in unequivocal terms, his willingness to have his salary attached. This conduct cannot either be called as 'mala fide' or 'deliberate refusal' or 'negligence' on the part of the judgment-debtor.
31. Further, it is to be seen from the guidelines laid down by the learned Judge in Kalidindi Rama Raju's case (supra) and also the judgment of the Karnataka High Court K. Karunakar Shetty v. Syndicate Bank, Manipal, (supra), that the Courts should also examine whether any other modes of recovery are available to the decree-holder.
32. In the case on hand, even from the counter-affidavit filed by the judgment-debtor, it could be seen that he has been drawing substantial amount towards his salary and the same can be attached for the realisation of the decretal amount, instead of resorting to an extreme step of ordering arrest of the judgment-debtor.
33. From the conduct of the judgment-debtor, as already pointed out, I am of the view that the bona fides in not paying the amount cannot be found fault with or an inference can be drawn regarding his deliberate failure or negligence on his part.
34. For the foregoing reasons, I am of the view that the impugned order of the Court below is wholly unjustifiable and is liable to be set aside and accordingly the same is set aside.
35. Accordingly, the civil revision petition is allowed, at the stage of admission. However, there shall be no order as to costs.
36. After pronouncement of the order, the learned Counsel for the decree-holder brought to the notice of this Court that initially this Court while ordering 'Notice Before Admission" in the civil revision petition, granted interim stay of operation of the impugned order, dated 22-10-2003, in E.P. No. 258 of 2002 in O.S. No. 53 of 2001, on condition of the judgment-debtor depositing a sum of Rs. 60,000/- on or before 31-12-2003.
37. One of the guidelines prescribed by my learned Brother Justice P.S. Narayana in Kalidindi Rama Raju's case (supra), was to the effect that the Court shall also think of the possibility of recovering of the amount through any mode other than arrest. Even though the civil revision petition is allowed, it is inevitable for the judgment-debtor to satisfy the E.P., amount in full, perhaps through some other modes.
38. Having regard to the facts and circumstances and also having regard to the fact that an amount of Rs. 60,000/- was already deposited by virtue of the interim directions of this Court, in my view, it is expedient to permit the decree-holder to withdraw the same without furnishing any security.