Orissa High Court
Santosh Kumar Mode And Ors. vs Adaita Ballav Satpathy on 4 April, 1991
Equivalent citations: AIR1992ORI29, AIR 1992 ORISSA 29, (1993) BANKJ 4 (1991) 72 CUT LT 41, (1991) 72 CUT LT 41
ORDER S.K. Mohanty, J.
1. Woes of an Indian litigant begin only after, he has obtained a decree. Such was the dictum of the Privy Council, The instant case is one of this kind where the decree-holders -- petitioners have not been able to realise the fruit of the money decree passed in their favour and against the opposite party in the year 1977 for a sum of Rs. 23,504.87 paise and cost of Rs. 5,120/-. The point canvassed in this revision is a short but interesting question of law.
2. The petitioners put the decree to execution in Execution Case No. 48 of 1978 in the Court of Subordinate Judge, Kendrapara. Ultimately on the prayer of the petitioners, the judgment-debtor opposite party Adaita was arrested and sent to civil prison on November 1, 1987 for a period of three months. When the judgment-debtor was still under detention, the petitioners prayed on August 29, 1987 for attachment and sale of judgment-debtor's moveables mentioned in the application for execution. On August 31, 1987 the executing Court ordered issue of writ of attachment, but later, on September 3, 1987 stayed issue of attachment and allowed time for filing of objection, if any, by the judgment-debtor. On September 19, 1987 the judgment-debtor filed his objection. He contended, inter alia, that the decree-holder having not pursued his original prayer for attachment of the moveables and instead having prayed for attachment of the moveables and instead having prayed for detention in civil prison and since the judgment-debtor was under detention in civil prison, the prayer for attachment and sale of moveables does not deserve consideration and should be dismissed. When this matter was pending consideration, the decree-holder on September 24, 1987 made a prayer for detention of the judgment-debtor for a further period of three months after expiry of the period of three months for which he was undergoing detention. On October 13, 1987 judgment-debtor filed his objection to such prayer taking the ground that there is no provision of law under which extension can be allowed. Both the prayers of the decree-holders were heard on October 17, 1987 and rejected by the impugned order dated October 24, 1987.
3. This revision is directed against the part 6f the impugned order which relates to rejection of the prayer for attachment and sale of moveables. The other part is rightly not assailed in view of the clear provision of Section 58, C.P.C. limiting the maximum period of detention to three months.
4. The learned counsel for the petitioners argued, that a decree for payment of money is not satisfied and the judgment-debt does not stand discharged by arrest and detention of the judgment-debtor in civil prison since detention is only one of the modes prescribed under the law for realisation of the decretal dues. It is contended that the decree-holder had the right to pursue till the amount of money decreed is realised and in this view of the matter, the learned Court below should have allowed the prayer for attachment and sale of the moveables.
5. At this stage one salient fact, which was admitted at the hearing may be taken note of. In the meanwhile the judgment-debtor has been released from civil prison after detention of full term of three months prescribed in Section 51 of the Code of Civil Procedure. Relying on this fact, it was contended on behalf of the opposite party that because of such detention, the debt stood discharged and the execution case cannot further proceed by any other mode.
6. Now the relevant provisions of the aforesaid Code may be noticed. Section 51 of the Code defines the jurisdiction and power of the executing Court. It prescribes several modes in which a decree-holder may proceed against a judgment-debtor for realising the decree. Thus, for a holder of a decree for payment of money the three modes prescribed in Section 51 of the Code are: (i) by attachment and sale or by sale without attachment of any property of the judgment-debtor, (ii) by his arrest and detention in prison; and (iii) by appointing a receiver. Section 51 provides that the decree can be executed subject to conditions and limitations laid down by the rules in the first schedule of the Code.
7. Simultaneous execution of a decree for payment of money both against the property and person of the judgment-debtor is allowed under Order 21, Rule 30 of the Code, but under Order 21, Rule 21, the Court may in its discretion refuse execution at the same time against the person and property of the judgment-debtor, in other words under this provision the Court has discretion to refuse simultaneous execution and to allow the decree-holder to avail himself of only one mode of execution at a time. Therefore, when the decree-holder made a prayer for attachment and sale of the moveable properties of the judgment-debtor at a point of time when he was under detention in civil prison, the executing Court had discretion to allow simultaneous execution considering the facts and circumstances of the case. Whether or not the executing Court should have exercised the discretion in favour of the decree-holder in the facts and circumstances of the case, is now not necessary to be decided, inasmuch as in the meanwhile the judgment-debtor has been released after detention for the full term of three months. Now the question arises, whether in the changed circumstances, the execution case can proceed and the moveable properties of judgment-debtor can be attached and sold for realisation of the decretal dues.
8. A judgment-debtor is either satisfied or discharged. A decree for money is said to be satisfied when the entire decretal dues is paid to the decree-holder or after receipt of a part of the decretal dues the decree-holder intimated the executing Court that he is satisfied and does not want to proceed further against the judgment-debtor. The legal meaning of the word 'discharge' is not found in any statute in the context of debt. On a reference to the Chambers Dictionary. I find that the word discharge means "to free from or relieve of a charge of any kind (burden, liability), to set free, to acquit, release from a charge of any kind." Therefore in my view, discharge of a debt shall take place either by operation of law or by express volition by the decree-holder by intimating the executing Court that he discharges the debt against the judgment-debtor and does not want to proceed further against him for realisation of the decretal dues.
9. In the instant case, the decree-holder instead of intimating as above has sought assistance of the Court for realisation of his dues by attachment and sale of the judgment-debtor's properties. Now the question arises whether the debt can be said to have been discharged merely because the judgment-debtor has been detained in civil prison for the full term. Section 51 of the Code merely prescribes different modes for achieving an object. In the instant case, the object was realisation of the dues. This object cannot be said to have been achieved merely because the judgment-debtor was detained in civil prison. It is for this reason, there is provision in Sub-section (2) of Section 58 of the Code that a judgment-debtor released from detention shall not, merely by reason of his release be discharged from his debt. In the case of Padrauna Raj Krishna Sugar Works Ltd. v. The Land Reforms Commissioner, AIR 1969 SC 897 (901), the apex Court has held :
The power exercisable by the Collector in recovering arrears of income-tax which are recoverable as arrears of land revenue are, it is clear, not restricted to the Land Revenue Code; the Collector is entitled to exercise all the powers of a Civil Court for the purpose of recovery of an amount due under a decree under the Code of Civil Procedure, and the Code of Civil Procedure imposes no obligation to recover the dues by sale of movables or by arrest and detention of the defaulter before immovable property may be attached. Section 51 of the Code of Civil Procedure provides:
xx xx xx By virtue of Order 21, Rule 30(e) of the Code of Civil Procedure simultaneous execution both against the property and person of the judgment-debtor is allowed. To hold, therefore, that is seeking to recover income-tax dues the Collector is in the first instance, by virtue of Sub-section (2) of Section 286, restricted to the recovery of arrears by attachment and sale of movables or by arrest and detention in prison of the defaulter, and if he cannot recover the amount then and then only to have recourse to the immoveable property of the judgment-debtor is to seek to amend both the Income-tax Act, 1922, as well as the Code of Civil Procedure.
In the case of Malli K. Dhanalakshi Ammal v. Malli Krishnamurthi, AIR 1951 Madras 756, the judgment-debtor had been arrested and detained in civil prison for full period of 6 months (as it was prior to amendment in 1976) mentioned in Section 58, C.P.C. in execution of a maintenance decree. In such facts it has been held at page 756 :
Of course, the debt and the liability for maintenance remain, under Section 58(2), C.P.C., itself, despite the release after six months.
10. By a cryptic order the learned Subordinate Judge has rejected the prayer for attachment by moveables with the observation that decree holders failed to point out any provision of law or citations in support of their contention. Following the aforesaid decisions of Supreme Court and Madras High Court it is held in this case, that in spite of detention in civil prison for full term of three months, the debt did not stand discharged, and the decree-holders were entitled to seek assistance of the Court for realisation of his dues through attachment and sale of movable properties of the judgment-debtor.
11. Before concluding, I may refer to the second ground on which the judgment-debtor resisted the prayer for attachment of moveables. It has been stated by the judgment-debtor in his objection filed on September, 19, 1987 that when the decree-holders filed petition on October 17, 1978 for attachment and sale of moveables and immovable properties of the judgment-debtor as per the list annexed thereto, the judgment-debtor filed his objection dated July 30, 1979 to the effect that the list of moveables and immoveables submitted by the decree-holders do not belong to the judgment-debtor and he has or had no interest therein. The decree-holders then filed a petition on January 17, 1980 for a direction to the judgment-debtor to make an affidavit stating the particulars of his assets. A direction was accordingly issued and the judgment-debtor filed an affidavit on October 17, 1980 disclosing his total assets. Thereafter the decree-holders filed a petition on July 23, 1981 to the effects that considering the objection and affidavit filed by the judgment debtor, the decree-holders did not proceed to press their prayer for attachment of moveables and prayed to put the judgment-debtor in civil prison. Ultimately the judgment-debtor was sent to the civil prison where he was detained for the full term. In these premises the second ground is that the decree-holders having not specifically mentioned in their petitions as to the specific place where the moveables in question are kept, an order of attachment and sale should not be passed. The aforesaid petitions and objections of the parties are not before the Court. When a decree-holder prays for attachment of any movable property of the judgment-debtor not in his possession, he is required to furnish an invantory of the property to be attached, containing a reasonable, accurate description of the same as per Order 21, Rule 12 of the Code. There is no rule in express terms that where execution is sought for by attachment and sale of movable property in the possession of judgment-debtor, a list of such property should be furnished. The obvious inference, therefore, is that where the movable property sought to be attached is in the possession of the judgment-debtor, no list of moveables is even required by law to be furnished by the decree-holder. He, however, must express in clear terms that the judgment-debtor was in possession of the moveables. In the case at hand, if the decree-holders have not disclosed to the Court whether or not the judgment-debtor is in possession of the moveables in question, they shall be called upon to do so and thereafter in the special facts of the case, they shall be required to disclose the place or places where they have been kept. After compliance on these lines, further proceedings in the execution case shall be taken, unless decree-holders are no more interested to pursue their remedy for realisation of the decretal dues by attachment and sale of the judgment-debtor's moveables.
12. In the result, it is found that the learned Subordinate Judge failed to exercise jurisdiction vested in him by law, occasioning failure of justice. The revision is, therefore, allowed with the above observations. No costs.