IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION No.58910 OF 2016 (GM-CPC) BETWEEN:
M/s. Benco Infrastructure Pvt. Ltd. Registered under the Previsions of Companies Act, 1956 having its Registered office at No.58 Vinayaka Layout, Bettadasapura Near Velankani Software Electronic City, Phase – II Bengaluru – 560 100 By its Managing Director Mr. B.E.Ethirajulu Naidu.
Also at:
Mr. B.E.Ethirajulu Naidu S/o late Rajagopal Naidu Aged about 55 years Benco Lotus Building Vinayaka Layout Doddathogur Village Behind Socreties School Electronic City, Phase - II Bengaluru – 560 100. … Petitioner (By Sri. Rakshit K.N., Advocate) AND:
Dr. R.V.Chavan S/o Ramakrishna Road Chavan Aged about 50 years R/at No.158, 1st ‘N’ Block Rajajinagar Bengaluru – 560 010. … Respondent (By Sri. S. Ganesh Shenoy, Advocate) This Writ Petition is under Article 227 of the Constitution of India praying to quash the order dated 19.11.2016 in Ex.16/2016 on the file of II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru Rural produced at Annexure-C and etc.
This Writ Petition is coming on for Preliminary Hearing in ‘B’ Group, this day, the Court made the following:
ORDER Petitioner being the Judgment Debtor in respondent’s Execution No. 16/2016 arising from the judgment & decree granted in O.S.No.275/2010 is invoking the writ jurisdiction of this Court for assailing the order dated 19.11.2016 a copy whereof is at Annexure-C whereby the arrest & detention of its Managing Director Mr. B E Yethirajunaidu has been directed. After service of notice, the respondent has entered appearance through his counsel and opposes the writ petition.
2. Learned counsel for the petitioner argues that the judgment Debtor having been arrested & detained in civil prison earlier for a period of 30 days thereafter extended to 45 days, cannot be subjected to re-arrest & detention. The learned counsel for the respondent vehemently opposes the writ petition.
3. Having heard the learned counsel for the parties and having perused the writ petition papers, the following question of law falls for consideration of this Court is:
“Whether the judgment debtor can be arrested for the second time in the execution of the very same judgment & decree?”
4. This question need not detain us any longer, since it is already answered by the Parliament by enacting Sub- section 2 to Section 58 CPC, 1908, which reads as under:
“(2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re- arrested under the decree in execution of which he was detained in the civil prison.”
5. A Coordinate Bench of this Court, in the case of M H AQUILL VS. UNION BANK OF INDIA, AIR 1985 KAR 120 at para No.5 has observed as under:
“This provision takes away the power of the Executing Court (which has to be exercised in accordance with the provisions in O.21 Rr.37 to 40 of the Code of Civil Procedure) to order re-arrest of a judgment-debtor after he has been released from detention, as per the order passed earlier by the Executing Court, that too after complying with the provisions in o.21 R. 37 to R.40 of the Code of Civil Procedure. Therefore, in the instant case, if the petitioner had been released from detention on 28- 2-1982 and a request for further detention had been made by the respondent decree-holder on 1-3- 1984 or later, the Executing Court would not have any power to order re-arrest in view of sub-sec. (2) of S. 58 of the Code of Civil Procedure. But the very provision makes it abundantly clear that the Executing Court does not lose jurisdiction to execute the decree. Only the mode of execution available to the decree-holder under S.58 and o.21 R. 37 to R.40 of the Code of Civil Procedure, would not be available i.e., when once the judgment-debtor is released from detention…”
6. Even during the colonial rule, more than a century ago, the Bombay High Court in the case of DAMODAR SHALIGRAM VS. MALHARI, (1883) ILR 7 BOM 106 interpreting a pari materia provision i.e., Section 341 of the Civil Procedure Code ( X of 1877) had held that the said Section is one clearly intended to operate in restriction of the power of arrest and in favour of personal liberty. The Apex Court in the case of JOLLY GEORGE VERGHESE VS. BANK OF COCHIN AIR 1980 SC 470, having interpreted the provisions of Section 58 read with Order XXI Rules 37 to 40 of CPC 1908, in the light of UNIVERSAL DECLARATION OF HUMAN RIGHTS,1948 has held that the personal liberty of citizen is sacrosanct, poverty is not a sin and therefore, a person who has no means of paying the decreetal debt cannot be committed to civil prison.
In the above circumstances, this writ petition succeed; the impugned order to the extent it directs arrest & detention of the petitioner is set at naught.
However, it is open to the respondent decree holder to execute the decree by other modes as do avail in law.
No costs.
Sd/- JUDGE NR/-