Rajasthan High Court - Jaipur
Mukh Ram And Anr. vs Hardeepsingh on 22 November, 1985
Equivalent citations: AIR1987RAJ1, 1986(1)WLN37
ORDER K.S. Lodha, J.
1. This is a judgment-debtors' revision against the order of the learned Munsif, Ganganagar, dt. 26-11-1983 directing the detention of the judgment-debtors-petitioners in civil prison for two months each for the non-payment of the decretal amount.
2. It appears that a decree for Rs. 9258/-plus interest total amounting to Rs. 10100/-was passed by the Debt Relief Court, Sriganganagar, against the present petitioners on 19-4-79. The decretal amount was made payable in three instalments, namely, Rs. 4000/- on 9-7-1979, Rs. 3000/- by 9-7-80 and the remaining amount by 9-7-81. On default of any of the instalments, the judgment-debtors were to pay interest at 4% p.a. The judgment-debtors did not pay any amount towards the decree and, therefore, the decree-holders applied for execution of the decree on 16-7-1982, by committing the judgment-debtors to civil prison as according to the decree-holder, the judgment-debtors having means to pay the decretal amount, were purposely avoiding the payment. On this, a notice under Order 21, Rule 37 C.P.C. was issued to the judgment-debtors and they filed their objections. After taking the evidence of the parties, the learned Munsif came to the conclusion that the judgment-debtors had about 25 bighas of land, which was capable of yielding Rs. 25,000/- approximately p.a. and income was shared by three brothers including the two judgment-debtors and thus the judgment-debtors had means to pay the decretal amount but had not paid the amount and, therefore, he directed their detention in prison.
3. I have heard the learned counsel for the petitioners. The non-petitioner has not appeared despite service.
4. The only contention raised before me by the learned counsel for the petitioners is that the learned Munsif has not properly applied his mind to the provisions of Section 51, Order 21, Rule 11-A and Order 21, Rule 37 C.P.C. and has improperly directed the detention of the judgment-debtors in civil prison. I find some force in this contention. To begin with, 1 may state that in the execution application, it was merely stated that the judgment-debtors had capacity to pay but were avoiding payment. However, no details of their capacity and the instances of neglect or refusal were stated in the application. Then in the evidence, only the decree-holder Hardeepsingh had come in the witness box and has stated that the judgment-debtors have one Murabba of land which yields an income of Rs. 25,000/- p.a. and they also have kachcha houses. Thus they are in a sound financial position but he nowhere states that the judgment-debtors were neglecting or refusing to pay the decretal amount. The judgment-debtors have come in the witness box and have stated that their father was allotted 1 Murabba of land and now after the death of their father, the income of the Murabba is being shared by the judgment- debtors and their brother and four sisters and each gets about Rs. 500/- p.a. The learned Munsif has observed that although the land may stand in the names of the three brothers including the judgment-debtors and four sisters and legally the sisters have a share in the property left by their father, he has surmised that ordinarily the brothers do not give any share to their sisters out of the property left by their father but only spend the amount at the time of their marriages and, therefore, it cannot be accepted when the judgment-debtors say that they give the shares of the income to the sisters and he has thus assumed that the whole income is available to the two judgment-debtors and their brother and thus the judgment-debtors are capable of paying the decretal amount. He then stops short and does not say that they have neglected or refused to pay the decretal amount. The mere non-payment of the decretal amount does not necessarily amount to a refusal or neglect to pay but it requires some intentional act on the part of the judgment-debtors, which may give rise to an inference that they are refusing or neglecting to pay the decretal amount Refusal implies that a request was made to the judgment-debtor at the time when he had the means to pay and yet the judgment-debtor did not pay and declined to make any payment. Negligence to pay also connotes that when the judgment-debtor could have paid he just omitted to pay due to his negligence or carelessness because it-may be that the judgment-debtors may have other claims to satisfy or other more urgent necessities to meet. Looking to all these circumstances, in the absence of a clear finding to this effect that the judgment-debtors having means to pay have neglected or refused to pay the decretal amount, the learned Munsif could not have directed them to be detained in civil prison. At the same time, it does appear that the judgment-debtors have also not come forward with sufficient explanation why having owned agricultural land to the extent of 1 Murabba, they have not been able to pay a single peny to the decree-holder and, therefore, looking to these circumstances, I am of the opinion that the matter requires a further probe.
5. It may be useful to point out that the law casts a duty on the executing Court to be very careful and circumspect in directing detention of judgment-debtors in civil prison. With this view in mind, the Legislature has provided certain guidelines and checks. Section 51 lays down the conditions on the fulfilment of which a judgment-debtor can be sent to civil prison. The present case attracts the Clause (c) with the proviso (b) and before directing the detention of the judgment-debtor to be detained in civil prison, the Court must be satisfied that the judgment-debtors have means to pay the amount of the decree or some substantial part thereof and refused or neglected to pay the same. Then Order 21, Rule 11A provides that 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 ground on which arrest is applied for. This provision, therefore, requires that in the application itself a clear statement should be made with regard to the grounds on which the detention of the judgment-debtor is prayed for and a mere prayer to that effect is not sufficient. If the grounds are not clearly and fully mentioned in the application itself, then an affidavit has to be filed along with it giving those grounds. Then Order 21, Rule 37 requires that before issuing warrant of arrest, a notice shall be issued to the judgment-debtor calling upon him to appear before the Court on a date to be specified in the notice to show cause why he should not be committed to the Civil prison and before issuing such a notice, the Court must be satisfied prima facie that the judgment-debtor is liable to arrest in pursuance of an application for execution. In the present case, it does appear that the executing Court has not properly applied its mind to all these provisions and has directed the detention of the judgment-debtor in civil prison in a routine manner, which cannot be sustained.
6. I therefore, accept this revision and set aside the order of the learned Munsif, Ganganagar, dt. 26-11-83 and send the case back to him for fresh proceedings in accordance with law keeping in view the observations made above.