The revision petitioner/respondent/Judgment Debtor has filed the civil revision petition as against the order dated 24.06.2008 in R.E.P.No.542 of 2007 in A.O.P.No.109 of 2006 ordering arrest of the revision petitioner by 15.07.2008 in the application taken out by the respondent/decree holder under Order 21 Rule 37 and 38 of Civil Procedure Code.
2.According to the learned counsel for the revision petitioner, the Executing Court, while passing orders in R.E.P.No.542 of 2007 in A.O.P.No.109 of 2006 dated 24.06.2008, has not passed a reasoned order and that when the civil revision petitioner/Judgment Debtor has expressed no means to pay the decree amount, there is no point in ordering his arrest and as a matter of fact, a Court of law has to record its reasons for committing a person to civil prison after satisfying itself subjectively based on the facts and circumstances of the case and further the revision petitioner has no property in his name and that the Executing Court has not adhered to the ingredients of Section 51 and Order 21 Rule 37 and 38 of C.P.C. before ordering the arrest and therefore, the civil revision petition is to be allowed in the interest of justice.
3.A perusal of the petition in R.E.P.No.542 of 2007, the respondent/decree holder has sought the assistance of the Court in regard to the realisation of Rs.45,513/- together with interest and costs by issuance of notice to the revision petitioner/respondent directing him to pay the aforesaid amounts failing which to issue an order of arrest under Order 21 Rule 38 of C.P.C. and to commit the revision petitioner to civil prison.
4.The revision petitioner in his counter before the Executing Court has specifically inter alia stated that 'as a subscriber in the chit conducted by the respondent/decree holder he has taken the chit in auction and paid most of the instalments and that his medical shop which he has been running along with others under partnership has sustained a heavy loss and that he is a man of no means and he has no movable or immovable property of his own and that he is unemployed and further he studied only upto +2 standard and he has no permanent job and he has no earnings and also that he is living under the shadow of his brothers and therefore, he is unable to pay the decree amount. The Executing Court has passed the following order in R.E.P.No.542 of 2007 in A.O.P.No.109 of 2006 on 24.06.2008:
"No valid counter. The reason stated in the counter is not accepted. No stay and appeal is pending. The decree is still in force. Hence arrest by 15.7.2008."
5.On a perusal of the order passed by the Executing Court in R.E.P.No.542 of 2007 in A.O.P.No.109 of 2006 dated 24.6.2008, this Court is of the considered view that the same is not a speaking and a reasoned order. Anv order passed by a trial Court must assign reasons thereto for arriving at a particular conclusion. In fact, the trial Court's order must have the appearance of justice.
6.At this juncture, the learned counsel for the revision petitioner cites the decision of Hon'ble Supreme Court in Jolly George Varghese and another V. The Bank of Cochin AIR 1980 S.C. 470 at page 471 wherein the Hon'ble Supreme Court has observed as follows:
"It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of poverty is no crime and recover debts by the procedure of putting one in prison is too flagrantly violative of
Art. 21 of Constitution unless there is some proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferrable from
Art. 11 of the Covenant and lethal blow of
Art. 21 of Constitution cannot strike down the provision of S.51, C.P.C. C.R.P.No.1741 of 1979-A, D/- 9-7-1979 (Ker). Reversed, 1969 Ker LT 927, Approved."
7.He also further relies on the decision of this Court in Ganesh V. Sankaran and another 2006 (3) CTC 546 wherein it is laid down that 'the Executing Court shall also give reasons before ordering arrest of judgment debtor and that procedure laid down in Rules 39 and 40 are mandatory before an order of arrest is made under Rule 37 of Order 21."
8.Section 51 of the Civil Procedure Code enjoins that one of the employees of execution of decree is 'arrest and detention of the Judgment Debtor in civil prison'. The proviso to Section 51 of C.P.C. restricts the power of the Executing Court to direct the arrest and detention of the Judgment Debtor in execution of the decree for payment of money. The aim is to give protection to indigent and honest debtors. Hence, mere non payment of the decree amount is not enough to send the judgment debtor to prison. If the conduct of the revision petitioner/judgment debtor is dishonest or contumacious is liable to be arrested and detained. As a matter of fact, the judgment debtor is not protected if there is element of bad faith in his conduct. If he has the necessary means and still he refuses or neglects to fulfill his obligation under the decree then he is liable to imprisonment as per Section 51 of the Civil Procedure Code.
9.Before passing an order of arrest of the judgment debtor, it is the primordial duty of the Executing Court to cause a notice calling upon him to show cause why he ought not to be committed to the civil prison. Under proviso to Rule 37 an issuance of notice can be dispensed with if an Executing Court is subjectively satisfied that the judgment debtor is likely to leave or abscond the local limits of the jurisdiction of the Court with an object of delaying the execution. In short, if no finding is recorded that the judgment debtor is likely to abscond or leave the local limits of Court, then the order directing the arrest of judgment debtor is without jurisdiction, in the considered opinion of this Court. Really speaking, there must be an extent of bad faith beyond mere indifference to pay that is some instant dispossession in the past or some deliberate or alternatively, current means to pay the decree amount or a substantial part of it. A Court of law has to go into the issue as to the requirements of Section 51 sub-rule 2 after the arrest and before its decision whether the judgment debtor should be committed to civil prison.
10.It is worth to recall the decision of this Court in P.Azeez Ahmed V. State Bank of India, Vaniyambadi AIR 1995 Mad 194 wherein 'an exparte order of arrest of the Judgment Debtor without properly ascertaining his means to pay has been set aside.'
11.As far as the present case is concerned, when the revision petitioner/judgment debtor has made a specific averment in the counter that he is a man of no means and no moveable and immovable property of his own, then a heavy duty is cast upon the respondent/decree holder to disprove the same by letting in oral or documentary evidence by means of examining the necessary witness thereto. Unfortunately, in the instant case on hand, such a procedure has not been resorted to. Merely the Executing Court has observed that 'No valid counter. The reason stated in the counter is not accepted. No stay and appeal is pending. The decree is still in force. Hence arrest by 15.7.2008' and these are all not sufficient one to order an arrest. It appears that the Executing Court has not applied its mind while ordering the arrest of the revision petitioner and in the present case, the Executing Court has not enquired and decided the means of judgment debtor to discharge the decree before ordering arrest and further that the mandatory ingredients of Rule 39 and 40 of Order 21 C.P.C. has not been followed before an order of arrest is made under Rule 37 Order 21 and suffice it for this Court to come to the inevitable conclusion that the order passed by the Executing Court in R.E.P.No.542 of 2007 sans merit and resultantly, the civil revision petition is allowed in furtherance of substantial cause of justice.
12.In fine, the Civil Revision Petition is allowed. The order passed by the Executing Court in R.E.P.No.542 of 2007 in A.O.P.No.109 of 2006 is set aside for the reasons assigned by this Court in this revision. The matter is remitted back to the Executing Court for fresh consideration of the entire matter in issue and the Executing Court is directed to adhere to the Section 51 of C.P.C. and also to follow the Order 21 Rule 37, 39 and 40 scrupulously while deciding the execution petition in the manner known to law and to pass orders on merits. The Executing Court shall dispose of the R.E.P.No.542 of 2007 within three months from the date of receipt of copy of this order and that the parties are given the liberty to adduce oral and documentary evidence to prove their respective claims, if they desire and if so advised in accordance with law. Considering the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
To Principal District Munsif Court, Salem