Madras High Court
M. Muthuswamy vs Supasri Chit Funds, Coimbatore And ... on 4 September, 1998
Equivalent citations: 2000(2)CTC168
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER
1. Heard.
2. The above revision is directed against the order dated 29.8.1994 in E.P.No. 205 of 1993 in Arbitration Case No.81 of 1993, on the file of the learned Second Additional Subordinate Judge, Coimbatore, arresting the revision petitioner, which reads as follows :
" Payment not effect today. Heard both sides. Perused the affidavit, petition, affidavit and the counter and there is sufficient grounds. Arrest by 30.9.1994.
3. Ms. Asha, learned counsel for the revision petitioner, invited my attention to Order 21, Rule 31, 37, 39 and 40.
4. According to Ms. Asha, the learned counsel for the revision petitioner, a reading of Order 21, Rule 31, 37, 39 and 40 would show that the Execution Court is under a duty to hold an enquiry and to give a finding as to the current means of the judgment debtor to discharge the decree before the order of arrest under Order 21, Rule 37. In this regard, she relies upon the decision in Jolly George Varghese v. Bank of Cochin, and Anama Gounder v. A.C. Ponnusami, .
5. The learned counsel for the revision petitioner further contends that Order 21, Rule 39 presupposes that the Execution Court is bound to determine the substance alone as a condition precedent before issuance of arrest warrant gains the revision petitioner/judgment debtor herein. In this regard, she relies upon the decision in Srinivas G. Shet v. Manipal Finance Corporation Ltd., 1998 BC 210.
6. In the light of the above well-settled proposition, Ms. Asha, learned counsel for the revision petitioner, contends that the order dated 29.8.1994 made in E.P.No. 205 of 1993 in Arbitration Case No.81 of 1993, is liable to be set aside, as the Execution Court neither conducted an enquiry, nor discharged its statutory obligation contemplated under Order 21, Rule 37,39 and 40, C.P.C. referred to above.
7. Alternatively, the learned counsel for the revision petitioner also invited my attention to the undertaking of the revision petitioner himself that he would pay a sum of Rs.1,000 per month towards the decretal amount, and contends that the Execution Court erred in rejecting such request of the revision petitioner in ordering the arrest. In any event, the learned counsel for the revision petitioner states that the revision petitioner/judgment-debtor is still prepared to discharge the decretal amount by paying Rs.1,000 per month.
8. Mr. A.S. Vijayaraghvan, learned counsel for the respondent/decree holder contends that the above revision is not against the order of refusing to accepted the request of the revision petitioner/judgment debtor to pay a sum of Rs.1,000 per month, but, it is against the order of arrest.
9. Mr. A.S. Vijayaraghavan, learned counsel for the respondents, contends that the Court was constrained to pass an order of arrest only as the revision petitioner ultimately failed to discharge the liability.
10. I have given a careful consideration to the submissions of both sides.
11. In this regard I am obliged to refer Order 21, Rule 37, 39 and 40, C.P.C., which read as follows:
Order 21, Rule 37: " Discretationary power to permit judgment-debtor to show case against detention in prison.--
(i) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall instead of issuing a warrant for his arrest, 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 the civil prison:
Provided that 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.
(2) Where appearance is not made in obedience to the Court shall, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor."
Order 21, Rule 39: "Subsistence allowance -- (i) No judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder pays into Court such sum as the Judge thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the Court and for the payment of the charges of conveyance of the judgment-debtor and of the amin or process-server who executes the warrant of arrest by bus, train or otherwise whichever is available from the place of arrest to the Court."
(2) Where a judgment-debtor is committed to the civil prison in execution of a decree, the Court shall fix for his subsistence such monthly allowance as he may be entitled to according to the scales fixed under Section 57, or where no such scales have been fixed as it considers sufficient with referre to the class to which he belongs.
(3) The monthly allowance fixed by the Court shall be supplied by the party on whose application the judgment-debtor has been arrested by monthly payments in advance before the first day of each month.
(4) Such sum (if any) as the judge thinks sufficient for the subsistence and cost of conveyance of the judgment-debtor for his journey from the court-house to the Civil Prison and from the Civil Prison, on his release, to his usual place of residence together with the first of the payments in advance under sub-rule (3) of such portion of the current month as remains unexpaired, shall be paid to the proper officer of the court before the judgment-debtor is committed to the Civil Prison and the subsequent payments (if any) shall be paid to the officer-in-charge of the civil Prison.
(5) Sums disbursed under this rule by the decree holder for the subsistence and the costs of the conveyance (if any), of the judgment-debtor shall be deemed to be costs in the suit."
Order 21, Rule 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 (i) the court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the court of 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 (i) 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.
(6) During the temporary absence of the judge who issued the warrant under Rule 37, 38 the warrant of committal may be signed by any other judge of the same court or by any judicial officer superior in rank who has jurisdiction over the same locality or where the arrest is made on a warrant issue by the District Judge the warrant of committal may be signed by any Subordinate Judge or District Munsif empowered in writing by the District Judge in this behalf, and the Judge signing the warrant of committal in the above cases shall also have the same powers as the Judge who issued the warrant is respect of passing such orders as may be appropriate under sub-rules (i), (3) and (5) of this rule.
(7) No judgment-debtor shall be committed to the civil Prison or brought before the court from the custody to which he has been committed pending the consideration of any of the matters mentioned in Sub-rule (i) unless and until the decree-holder pays into court such sum as the Judge may think sufficient to meet the traveling and subsistence expenses of the judgment-debtor and the escort."
12. Further, I am also obliged to refer the decision of the Apex Court in Jolly George Varghese v. Bank of Cochin, , wherein, while dealing with Order 21, Rule 37, the Apex Court has held as follows:
" The simple default to discharge the decree, is not enough, there must be some element of bad faith beyond mere indifference to pay, some deliberate or recustant disposition in the post or alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal as demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor's other pressing needs straitened circumstances will play prominently."
13. Following the said decision in Jolly George Varghese v. Bank of Cochin, this Court, in Anama gounder v. A.C. Ponnusami, AIR 1982 Mad. 31, has held as follows:
"Where a debtor is sought to be arrested and put in Civil Prison, for non-payment of a decree debt, the execution Court cannot rely for the support of its order entirely on the state of the pleading of the judgment debtor. It is the bound duty of the execution Court to satisfy itself that the judgment debtor has, or has had since the date of the decree, the means to pay the amount of decree or some substantial part thereof, but all the same refuses or neglects or has refused or neglected to pay the same. The Court's satisfaction must be entered for good reasons which are to be recorded in writing in the order. The provisions of section 51 do not depend for their implementation on the attitude which the judgment debtor might take when notice goes to him of the execution petition. Whether or not the judgment-debtor resists the execution petition and whether or not the judgment debtor denies that he has means, the Court cannot shrik its responsibility under the code of instituting an enquiry to find out whether the judgment-debtor as the requisite means to pay and yet wilfully refuses or neglects to pay the amount"
14. As rightly pointed out by the learned Counsel for the revision petitioner, the High Court of Karnataka, while dealing with Order 21, Rule 31, in Srinivas G.Shet v. Manipal Finance Corporation Ltd., 1998 BC 21, has held as follows:
" The Executing Court is first required to determine the amount of subsistence allowance to be paid by the decree-holder for arrest and production judgment debtor before it in execution of a money decree and that it is a condition precedent for the decree-holder to deposit the said amount into the court before the arrest warrant is issued against the judgment debtor."
15. The above mentioned well-settled principles of law are not disputed by the learned counsel for the respondents herein.
16. Therefore, on a reading of the order dated 29.8.1994 in E.P.No.205 of 1993 in the light of the decisions referred to above, I am satisfied that the Execution Court neither conducted an enquiry under Order 21, Rule 39, nor complied with the procedure contemplated under Order 21, Rule 39 and 40, and therefore, I am obliged to set aside the order dated 29.8.1994 in E.P.No.205 of 1993.
17. At this point of time, I am also obliged to take note of the undertaking given by the learned Counsel for the revision petitioner that the revision petitioner/judgment-debtor is prepared to make a payment of Rs.1,000 per month and, in this behalf there is no justification to remit the matter to the Execution Court. Therefore, while setting aside the order dated 29.8.1994 in E.P.No.205 of 1993, I also record the undertaking of the revision petitioner/judgment-debtor that he shall pay a sum of Rs.1,000 per month towards the decretal amount and in the event of any default for three consecutive months, it is open for the respondents/decree holders to take appropriate execution proceedings afresh.
The revisions are ordered accordingly. No costs.