Andhra HC (Pre-Telangana)
K.V. Ramakrishnaiah vs M. Sateesh Kumar Reddy on 14 July, 2006
Equivalent citations: 2006(6)ALT70
ORDER C.Y. Somayajulu, J.
1. Respondent who obtained a decree for recovery of money against the revision petitioner filed E.P. 17 of 2000 seeking attachment and sale of the immovable properties belonging to the revision petitioner. During the pendency of that E.P. respondent filed another E.P. 17 of 2006 seeking arrest and detention of the revision petitioner and filed E.A. 32 of 2006 seeking arrest of the revision petitioner by dispensing with notice under Rule 37 CPC. The executing Court allowed the said petition and ordered arrest of the revision petitioner by the order under revision. Hence this revision.
2. The main contention of the learned Counsel for the revision petitioner is that inasmuch as respondent is proceeding against the properties of the revision petitioner, he cannot, by filing a second E.P., seek arrest of the revision petitioner, and thereby curtail his personal liberty. By placing strong reliance on Pothuneedi Laxmana Rao v. Kadasu Muneswara Rao . Badrachalam Suryanarayana v. Lotla Varalaxmi 2004 (1) An.W.R. 565 (A.P.) : 2004 (2) ALD (NOC) 92. and M.V. Panduranga Rao v. A. Sattar Khan . he strongly contended that the order under revision is unsustainable.
3. The contention of the learned Counsel for the respondent is that revision petitioner who is well versed in court affairs has been dragging on the proceedings and had not paid even a single pie though he has means to pay and had filed counter in E.P. 17 of 2000 taking a plea that he had discharged the decree debt and when his contention was not accepted he preferred a revision to this Court in C.R.P. No. 4522 of 2005 and obtained stay of further proceedings in the E.P., and that interim order was vacated as he failed to comply with the conditional order passed by this Court and ultimately that CRP was also dismissed and as the court has power to grant simultaneous execution and as the revision petitioner is trying to go out of the territorial jurisdiction of the executing Court to defeat and delay the execution, respondent had to file the E.P. for his arrest.
4. I am unable to agree with the contention of the learned Counsel for the revision petitioner that a decree holder cannot file an EP for arrest of the judgment-debtor after he filed an EP for proceeding against his immovable properties, because as per Rule 30 of Order 21 CPC, a decree for payment of money can be executed by detention in civil prison of the judgment-debtor or by attachment and sale of his property or by both. So it is very clear that the decree holder can proceed both against the person and properties of a judgment-debtor for recovery of the money due under a decree for payment of money. But as per Rule 21 of Order 21 CPC Court has discretion to refuse simultaneous execution. In view of Rule 30 of Order 21 CPC read with Rule 21 of Order 21 CPC it is for the decree holder to choose the mode of execution and it is not for the Court or the judgment-debtor to say what mode of execution the decree holder should adopt to realize the money due to him under a money decree in his favour.
5. The embargo placed by Section 51 CPC on execution 'by detention in prison' is that such detention can be ordered only after giving the judgment-debtor an opportunity to show cause why he should not be committed to prison, and only after it i.e. the court, is satisfied, by recording the reasons in writing that the judgment-debtor, with the object of obstructing or delaying the execution of the decree, is likely to abscond or leave the local limits of the jurisdiction of the Court, or has, after the institution of the suit, in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and is refusing or neglecting to pay the amount covered by the decree.
6. As per Rule 37 of Order 21 CPC in an E.P. for the arrest and detention in the civil prison of a judgment-debtor in a decree for payment of money, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before it on the day specified in the notice and show cause why he should not be committed to the civil prison. Such notice will not be necessary if the Court, by affidavit, or otherwise, is satisfied that the judgment-debtor, with the object of delaying the execution of the decree, is likely to abscond or leave the local limits of its jurisdiction and straightaway issue a warrant for the arrest of the judgment-debtor. So it is clear that in cases where the court is satisfied, by affidavit or other wise, that the judgment-debtor is likely to abscond or leave its jurisdiction, can order his 'arrest' even without issuing a notice. It should be borne in mind that such arrest is only to secure the presence of the judgment-debtor to prevent his going out of the jurisdiction of the executing Court. What is to happen after arrest of the judgment-debtor is laid down by Rule 40 of Order 21 CPC. As per that Rule the executing Court should afford opportunity to both the decree holder and the judgment-debtor to adduce evidence in support of their contentions. Only after its coming to a conclusion that the conditions laid down in Section 51 CPC are satisfied, can the executing court order the detention of the judgment-debtor in civil prison. So merely because the executing Court, by the order under revision, directed the arrest of the revision petitioner, it does not mean that he would be committed to civil prison after he is produced before the Court. The Court will, after affording an opportunity to both sides, have to decide, by an order in writing, whether to commit him to civil prison or not.
7. In Pothuneedi Laxmana Rao case (1 supra) and Bhadrachalam Suryanarayana case (2 supra) relied on by the learned Counsel for the revision petitioner the attention of the learned Judge was not drawn to Rule 30 of Order 21 CPC. On the ground that the decree holder in those cases admitted that the property attached would satisfy the decretal amount, the learned Judge held that the executing Court was in error in ordering detention of the J. Dr. in civil prison. So the said decisions do not apply to the facts of this case.
8. In M.V. Panduranga Rao case (3 supra) since order of arrest was passed without holding enquiry under Rules 37 and 38 of Order 21 CPC, the order of arrest was set aside. The facts in this case are different. In this case, the respondent in the affidavit filed in support of the E. A. 32 of 2006 clearly stated that he obtained a decree against the revision petitioner for Rs. 1,00,000/- and had filed E.P. 17 of 2000 and that the revision petitioner who has property worth Rs. 10,00,000/- is pleading inability to pay the decretal amount and with a determination to defeat the decree, and is likely to leave the local limits of the jurisdiction of the Court with mala fide intention of delaying the execution of the decree and so he may be arrested straightaway without issuing notice under Rule 37 of Order 21 CPC. The executing Court, being satisfied with the reasons mentioned in the affidavit of the respondent, ordered arrest of the revision petitioner. When the Proviso to Rule 37 (1) of Order 21 CPC enables the Court issuing a warrant of arrest straightaway without prior notice, if it is satisfied that the judgment-debtor is likely to leave the limits of its jurisdiction with a view to defeat and delay the execution, and when the order under revision is only to arrest the revision petitioner, it cannot be construed as an order of detention of the revision petitioner in civil prison. So revision petitioner cannot be said to be aggrieved by the order under revision. In this connection I feel it relevant to refer to the observations of Sambasiva rao, J. in Angati Venkateswarlu @ Konda v. The Maharanipeta Milityary Mosque 1971 APHN 135. reading:
Section 51 CPC refers to powers of Court to enforce execution. One of such powers is by arrest and detention in prison. It is important to note that this clause refers not only to detention but also arrest as two different matters. This distinction between the two is kept up by Rules 37 to 40 of Order 21 which lay down the procedure for execution of a decree by way of arrest and detention in prison. Rule 38 requires that every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed unless the judgment-debtor paid the amount. Once the judgment-debtor appears in obedience to a notice or is brought to Court after being arrested, Rule 40 requires the Court to proceed to hear the decree-holder and all such evidence as may be produced by him in support of the application for execution and then to give the judgment-debtor an opportunity to show cause why he should not be committed to prison...it is quite possible that even at that late stage the judgment-debtor might show cause whey he should not be detained in prison in execution of the decree.
So merely because the revision petitioner is ordered to be arrested and brought before the Court, it cannot be presumed that he will be committed to civil prison without following the procedure prescribed under Rule 40 of Order 21 CPC. As stated earlier ordering arrest of the revision petitioner is only to secure his presence before the Court. After he is brought under arrest, question whether he should be detained in civil prison or not will have to be determined as per the evidence to be adduced by the respondent and the revision petitioner respectively.
9. Therefore, I find no merits in this petition and hence the petition is dismissed, with costs.