1. The petitioner is one Anama Gounder, against whom the respondent had obtained a decree for money in the sum of Rs. 1618. The decree holder sought to levy execution against the judgment debtor by applying for his arrest and detention in civil prison. The judgment debtor resisted the execution proceedings on the score that he was a small farmer within the meaning of Act 31 of 1976, entitled to scaling down the debt.
2. The learned District Munsif, found on the evidence that the judgment debtor could not be regarded as a small farmer. Having disposed of the judgment debtor's objection to execution based on Act No. 31 of 1976, the learned District Munsif then proceeded to give a disposal to the execution petition in the following manner-
"The respondent does not plead that he has no means to pay the decree amount..........The petition is posted to 25-7-1978 for the payment of the entire amount by the respondent. If the respondent fails to pay the decree amount by then, arrest will be ordered."
This order of the learned District Munsif has been brought before this Court in revision by the judgment debtor.
3. Mr. M. V. Krishnan, learned counsel for the petitioner, does not canvass the correctness of the finding that the judgment debtor is not a small farmer within the meaning, of Act 31 of 1976. Learned counsel, however, strongly urges that the manner of disposal of the execution petition for arrest of the judgment debtor is irregular.
4. I agree with this contention. The learned District Munsif is, no doubt, correct in saying that the judgment debtor does not plead that he has no means to pay the decree amount. But this is purely a negative way of characterising the pleadings of the judgment debtor. For nowhere in his counter-affidavit does the judgment debtor plead that he has means to pay. There is no admission in this sense. In any case, in a matter like this, where a debtor is sought to be arrested and put in civil prison for nonpayment of a decree debt, the execution Court cannot rely for the support of its order entirely on the state of the pleadings of the judgment debtor. A reference to S. 51 C. P. C. would show that it is the bounden 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. S. 51 further insists that the Court's satisfaction must be entered for good reasons, which are to be recorded in writing in the order. The provisions of S. 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 shirk its responsibility under the Code of instituting an enquiry to find out whether the judgment debtor has the requisite means to pay and yet wilfully refuses or neglects to pay the amount O. 21, R. 40 (1) C. P. C. lays down that-
"When a judgment debtor appears before the Court in obedience to a notice issued under R. 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 bear 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."
This provision further shows that even where the decree-holder produces evidence as to the means of the judgment debtor, still it would be essential for the Court to give the judgment debtor an opportunity, of showing the cause as to why he should not be committed to civil prison. This opportunity is over and above the opportunity afforded by the service of n9tice of the execution petition.
5. In the present ewe, the entire enquiry before the learned District Munsif was taken up with the question whether the judgment debtor was a small farmer and was entitled on that account, to the benefits of Act 31 of 1976. Almost the entire discussion in the order of the learned District Munsif is devoted to this question only. There is no indication whatever in the order as to what was the evidence, which the decree-holder particularly directed towards making good his application for arrest of the judgment debtor. There is no reference whatever in the order of the District Munsif as to what materials were placed before the Court by the judgment debtor as to the judgment debtor's means to pay and as to the failure or neglect of the judgment debtor to pay the same. Nor is there any indication to show that the judgment debtor was given an opportunity to show cause why he should not be arrested and put in civil prison as contemplated by O. 21, R. 40 (1) of the Code What the learned District Munsif has' done is to close the discussion on the issue raised on the basis of the Act 51 of 1976 and straightway direct that the judgment debtor will be put in civil prison if he does not pay the entire decree amount by 25-7-1978. Surely, this is not the way in which a petition for arrest of the judgment debtor has got to be enquired into and disposed of by an execution Court
6. In Jolly George Varghese v. Bank of Cochin, ,
Krishna Iyer, J. had shown how gruesome and obnoxious is the remedy of incarcerating a debtor for an unpaid debt under modern conditions and in the context of Human Rights. While learned Judges, who have to administer old laws may have to guard themselves against overreaction to modern trends in social jurisprudence, they may at least observe the requirements of the law in a matter such as arrest and detention in civil prison of judgment debtors. In my view, even a minimal adherence to the requirements of the Code had not been done in the present case.
7. I accordingly set aside the order of the learned District Munsif and send the case back to him so that it may have a chance of being heard and determined in accordance with the provisions of the Code. The civil revision petition is accordingly disposed. But there will be no order as to costs.
8. Petition allowed.