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J.J. Shankar Vs. W.M. Ismail - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberC.R.P. No. 3834 of 1980
Judge
Reported inAIR1981AP336
ActsCode of Civil Procedure (CPC), 1908 - Sections 51
AppellantJ.J. Shankar
RespondentW.M. Ismail
Appellant AdvocateR.V. Subba Rao, Adv.
Respondent AdvocateMirza Ghouse Baig, Adv.
DispositionPetition dismissed
Excerpt:
.....directs exclusion ofproperty that cannot be attached from being taken of in determining the debtor's means to pay. 7. the learned counsel next argued that mere failure to pay the decretal amount is not sufficient for the court to order arrest of the judgment-debtor even with means to pay. it is as well that i read in full the important proviso which the legislature had added to that section which gives power to the court to execute a money decree by arrest and detention. 8. proviso :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) that the..........directs exclusion ofproperty that cannot be attached from being taken of in determining the debtor's means to pay. the lower court has found on the basis of the evidence, which i have mentioned above, that sankar had means to pay the amount of the decree but was refusing and neglecting to pay the same. on the supporting evidence, which i have referred to above. i think the executing court is right in coming to that conclusion.6. now, mr. r. v. subbarao, the learned counsel for the petitioner. attempted to show that his client has no means to pay the decretal amount and was therefore, not liable to be arrested. the learned counsel mainly referred to the evidence given by the village karnom in the cross-examination. but in view of the fact that there is overwhelming evidence in.....
Judgment:
ORDER

P.A. Choudary, J.

1. This Civil Revision Petition is filed against an order of the Principal District Munsif Kurnool made in E. P. No. 155/78 in O. S. No. 666/77.

2. O. S. No. 666/77 was filed by one Ismail against one Sankar the present) petitioner, for recovery of a small sum of Rs. 1825-37 as due under a khata maintained by Sankar with Ismail in the latter's cloth shop. The allegation was that Sankar purchased during December, 1974 to May, 1975 cloth from Ismail's shoo. That suit was contested by Sankar by raising a variety of pleas. He had denied that he had ever purchased the cloth on credit from the plaintiff and he had also pleaded that he is a small farmer within the meaning of Act 7 of 1977. Subsequently, however, the suit was decreed,

3. Sankar was an employee of the State Bank of India, Kurnool, Lens prior to the filing of the aforesaid suit the Branch Manager. State Bank of India. Kurnool wrote a letter to Ismail's Lawyer requesting him not to institute any legal proceedings against Sankar for recovery of the amounts due and promising payment of the amount by the middle of April of that year in a lump sum from and out of the realisation of the sale price of tobacco crop. Evidently Sankar never kept his promise. Ismail had been forced to file his suit. Now the suit had been decreed Ismail taken out execution and sought the arrest of Sankar. The Executing Court by its order dated 7th July. 1980 directed the arrest of the judgment-debtor and his detention in a civil prison. It is against that order of the Executing Court the present Revision Petition has been filed,

4. The Principal District Munaif, Kurnool, in support of his order of arrest found that the judgment-debtor owns lands and has been raising tobacco and that his source of income is not merely his bank salary. In support ofthis finding the Executing Court relied upon the aforesaid letter written by the Branch Manager, State Bank of India on 14-12-1977 to the petitioner's lawyer which was marked as Ex. A-2 and also upon the admission made by Shankar himself in his written statement that he was a small farmer, which was marked as Ext. A-1, It also relied upon the evidence of P. Ws. 2 and 3. The evidence of P. W. 2. who was an officer in the State Bank of India, was to the effect that Sankar was an employee of the State Bank of India setting in all about Ra, 600/- per month. P. W. 3 the Village Karnom deposed in his chief-examination that the judgment-debtor was in possession of Ac, 13-61 cents of land in S. No. 378, Ex, A-3 is the 10 (1) account showing that by the death of the judgment-debtor's father his sons including Sankar were enjoying the aforesaid Ac. 13-61 cents of land. It is no doubt true that in the cross-examination the Village Karnom had made several prevaricating statements. But the executing Court appreciated the evidence and relying upon Exs. A-3. A-1 and A-2 held that Sankar had means to pay the debt but had no will to pay,

5. Section 51 of the Code of Civil Procedure invests the Executing Court various powers to enforce a decree. One of the modes provided for execution of the decree is by arrest and detention in a civil prison of the judgment-debtor. But this mode can only be resorted to by the decree-holder where the Judgment-debtor with the object or effect 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 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 or if the decree is for a sum for which the judgment-debtor is bound in a fiduciary capacity to account, Explanation to that section directs exclusion ofproperty that cannot be attached from being taken of in determining the debtor's means to pay. The lower Court has found on the basis of the evidence, which I have mentioned above, that Sankar had means to pay the amount of the decree but was refusing and neglecting to pay the same. On the supporting evidence, which I have referred to above. I think the Executing Court is right in coming to that conclusion.

6. Now, Mr. R. V. Subbarao, the learned Counsel for the petitioner. attempted to show that his client has no means to pay the decretal amount and was therefore, not liable to be arrested. The learned Counsel mainly referred to the evidence given by the Village Karnom in the cross-examination. But in view of the fact that there is overwhelming evidence in support of the finding of the executing Court that the judgment-debtor had means to pay the debt, I refuse to interfere with the finding of the Court below although I find that the Village Karnom had given prevaricating statements.

7. The learned Counsel next argued that mere failure to pay the decretal amount is not sufficient for the Court to order arrest of the judgment-debtor even with means to pay. This armament of the learned Counsel was sought to be buttressed with the support of a recent decision of the Supreme Court in Joly George Varghese v. Bank of Cochin, : [1980]2SCR913 . The judgment of the Supreme Court in the above case was merely concerned with the meaning of that part of Section 51. Civil P. C. empowering a Court to execute a decree by arrest and detention of the judgment-debtor. It is as well that I read in full the important proviso which the Legislature had added to that section which gives power to the Court to execute a money decree by arrest and detention.

8. 'Proviso :-- '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) that the judgment-debtor with the object or effect of obstructing or delaying the execution of the decree,

(1) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(2) has after the institution of the suit in which the decree was missed dishonestly transferred, concealed, or removed any pan of his property, or committed any other act of bad faith in relation to his property, or

(b) that the judgment-debtor has, orhas since the date of the decree, themeans to pay the amount of decree orsome substantial part thereof and refuses or neglects or has refused orneglected to pay the same'.

Explanation;

'In the calculation of the means of the judgment-debtor for the purposes of Clause (b), there shall be left out of account any property which, by or under any law or custom haying the force of law for the time being in force, is exempt from attachment in execution of the decree.'

An analysis of Section 51. Civil P.C. would clearly show that while the Courts are empowered to execute a decree by ordering arrest and detention of a judgment-debtor. there are several procedural and substantive safeguards provided by the Proviso so that an honest judgment-debtor without means to pay may not be harassed. The proviso makes it clear that before ordering arrest, the judgment-debtor must be given a notice and an opportunity to show cause why he should not be committed to prison. After hearing the judgment-debtor, the Court must be satisfied that the judgment-debtor was acting dishonestly or with bad faith. Clause (a) of the proviso deals with two types of conduct of the judgment-debtor. One is, where he is attempting to abscond or leave the local limits of the jurisdiction of the Court with the object or effect of obstructing or delaying the execution of the decree or where he was dishonestly transferring, concealing or removing any part of his property or was committing any other act of bad faith in relation to his property with the object of obstructing or delaying the execution of the decree. Clause (b) with which we are more directly concerned deals with a situation where a judgment-debtor having means to pay the amount of the decree or some substantial Part thereof, refuses or neglects to pay the same. Bymeans or Explanation to that Proviso, property which cannot legally be attached in execution of a decree is directed to be counted out for the purpose of ascertaining the means or capacity of the judgment-debtor to pay the amount of the decree. Now, there is no part of this Proviso to which any reasonable objection can be taken either on grounds of Economics or grounds ol Ethics. A modern society, based upon money economy, is sure to collapse if debts are not promptly collected. It is not without social significance that all religions insist upon payment of debts as a spiritual duty. The doctrine of 'pious obligation', is well known to Hindu Law. In principle, therefore. Section 51. Civil P. C. with the aim of collecting old debts, cannot be objected to. The method it provides cannot be called cruel or unusual or inhuman either, Section 51. Civil P. C. does not authorise the execution of a money decree by arrest of the judgment-debtor except in case where the Judgment-debtor acts in bad faith. In other words every judgment-debtor is not made by the Act subject to Section 51. Civil P. C. There can be no legal or constitutional objection for execution of a decree by arrest and detention of an individual judgment-debtor who deliberately refuses or neglects to pay a decretal amount while possessing the capacity to pay. Social moratorium is a different matter. The argument of the learned Counsel that his client cannot ba arrested even though he has failed to pay the decretal amount while being in a position to pay, cannot be accepted. It is therefore clear that on the basis of the statute this submission of the learned Counsel for the revision petitioner must be rejected.

9. But can this argument of the revision petitioner be supported at least on the basis of the aforementioned judgment of the Supreme Court? We may note that in the above judgment of the Supreme Court. Section 51. Civil P. C. was not invalidated. So long as Section 51. Civil P. C. is not invalidated, there is no escape for the Courts from following and enforcing its provisions. As Chief Justice Marshall said declining jurisdiction can be treason to Constitution, The Supreme Court judgment did not interpret Section 51, Civil P. C. in any way which can be described as being contrary to the apparent tenor and meaning of Section 51. Civil P. C. On the other hand it found in Section 51, Civil P. C. harmony and consonance with the declaration on Civil Rights. All that the Supreme Court said was that mere physical fact of failure to pay the debt without the presence of bad faith on the part of the judgment-debtor to disown contractual obligations and evade payment of decree debt would not entitle the executing Court to order arrest and detention of the judgment-debtor. In other words, the presence of bad faith on the part of a judgment-debtor is essential for the executing Court to order arrest and detention of a judgment-debtor. In my humble opinion, this is no more than what the Proviso to Section 51. Civil P. C. says. In the Supreme Court case the Bank of Cochin obtained money decrees against the appellants before the Supreme Court and obtained court orders for the arrest of the judgment-debtors by way of execution of those decrees. Additionally, all the properties of the judgment-debtors were attached for the purpose of sale in execution and a Receiver was appointed to manage the properties. In those circumstances, the Supreme Court found fault with the Courts below who ordered arrest without inquiry into 'current ability of the judgment-debtors to clear off the debts or their mala fide refusal.'

The Supreme Court then referred to Article 11 of the International Covenant on Civil and Political Rights which bars imprisonment merely on the ground of inability to fulfil a contractual obligation and discussed the question whether Article 51 of our Constitution is based on doctrine of incorporation. But nowhere in this whole discussion or in its reference approving the Kerala Judgment, did the Supreme Court say that Section 51. Civil P. C. in any wise, contrary to the spirit of the International Covenant leave alone its letter. The Kerala Judgment referred to by the Supreme Court found similar favour in both. The only thing that the Supreme Court had added to our wider-standing of Section 51, Civil P. C. is its interpretation of 'has had since the date of the decree the means to pay'. These words, the Supreme Court held, do not apply to a judgment debtor who had merely com by some resourcesafter the decree. The Supreme Court recognized the possibility of those resources being spent on urgent and pressing and genuine needs thus rendering the judgment-debtor without means to pay the decree debt. The Supreme Court held that mere omission to pay is not enough but an attitude of refusal on demand verging on dishonest, disowning of the obligation under the decree is necessary, Thus interpreted, the judgment of the Supreme Court no doubt, harmonized Section 51. Civil P. C. but did not obliterate the debtor's obligation to pay nor did it take away the power and duty of the executing Court to execute money decrees by arrest and detention in appropriate cases. Applying that test to the facts of this case. I can find that the judgment-debtor in this case was wilfully refusing and neglecting to pay the debt. He had his bank salary, he had his agricultural income. But still, he refused and neglected to pay the decree debt and that too without any reasonable explanation. His conduct in contesting the the suit with all false pleas attests to his had faith. The suit was decreed on 7-4-1978. But to this day. the creditor got nothing out of this decree except disappointment. In the absence of proper explanation by the judgment-debtor as to the circumstances that forced him not to pay. the only course open for the executing Court appears to me is to order his arrest and detention.

10. It is said by the learned Counsel for the petitioner that his client's poverty should not be turned into a crime. These fine sentiments, as I said above, are amply taken care of by the Legislature which authorises the arrest and detention of a judgment-debtor under Section 51. Civil P. C. only where he had means and yet fails to pay the decree amount with a mala fide intention. I agree that poverty cannot be turned into a vice as it cannot be made into a virtue,

11. We must remember that Section 51. Civil P. C. can apply not only to the poor debtors but also to the rich debtors. If Section 51. Civil P. C. does not permit detention of a poor debtor to the same extent it would not permit the detention of a rich debtor. This cannot be the meaning of Section 51. Civil P. C. Addedly, sending a debtor to a civil prison in execution of a decreeis jurisprudentially different from convicting a person of a crime. It is merely a mode of coercing the debtor to satisfy the decree,

12. For all the above reasons. I dismiss this C. R. P. with costs.


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