Ayyasamy Gounder vs Nachimuthu Gounder

Maharajan, J.—This appeal arises in the following circumstances. The appellant, Ayyaswami Gounder, is the judgment debtor in O. S. No.

1835 of 1970 on the file of the District Munsif Court, Pollachi. On 30-3-1970 Nachimuthu Gounder, the respondent herein, obtained a decree for

Rs. 1633-50 against the appellant. No payment was made towards the decree and on 14-9-1971 the decree-holder filed E. P. 153 of 1971 under

Order 21 , Rule 11(2), Civil P. C. praying for the arrest of the judgment-debtor. Notice of this E. P. was ordered and the judgment-debtor was

served. As he remained ex parte on 2-11-1971, arrest was ordered. Thereupon, the judgment-debtor engaged counsel and filed a petition to set

aside the ex parte order passed on 2-11-1971. This ex parte outer was set aside and the judgment debtor granted time to file his counter to E. P.

153 of 1971. He filed his counter in which he contended that he had no means to pay the decretal amount and that he had in his possession only a

small house in Sikkilam-palayam village, which was under a mortgage for Rs. 1000. The Court posted the matter for enquiry. The judgment debtor

examined himself as R. W. 1 during the enquiry and the decree-holder examined himself as P. W. 1. After hearing arguments, the court below

passed an order on 20-1-1972, allowing the petition of the decree-holder with costs and directing the judgment-debtor to be arrested by 7-2-

1971. The order contains a full discussion of the plea of the judgment-debtor on the merits and a finding to the effect that though he had the means

to pay the decretal amount, he was purposely evading payment thereof. Be it noted, that this finding Was arrived at after following the procedure

laid down in Section 51, Civil P. C. The judgment-debtor did not challenge this order. The order therefore became binding and final.

What transpired after the date of the order now becomes relevant. The order was passed, as I have said, on 20-1-1972 directing the arrest of the

judgment-debtor by the 7th February, 1972. On 7-2-1972, the E. P. was taken up and the following endorsement made under the initials of the

District Munsif ""J. D. not found. E. P. dismissed."" If the judgment-debtor was not found, it was due to no fault on the part of the decree-holder and

the court ought to have granted an opportunity to the decree-holder to pay batta again, so that a fresh warrant might issue for the arrest of the

judgment-debtor. Evidently, the court was in a hurry to close the E. P. purely for statistical purposes and without any regard for the interests of the

decree-holder, who was anxious to pay batta and get the order of arrest passed on 20-1-1972 executed. In fact on 8-2-1972, the decree-holder,

who came to know about the dismissal of the E. P. filed a fresh petition (E. P. 34 of 1972) praying for the arrest of the judgment-debtor. In

pursuance of this E. P. notice of arrest was again issued to the judgment-debtor, who appeared by counsel on 6-3-1972, and after gelling

repeated adjournments for filing a counter, ultimately filed a counter on 12-4-1972, repeating the same objections as he had raised in his counter to

E. P. 153 of 1971.

The court below again adjourned the matter for enquiry. An enquiry was held on 25-7-1972 and neither party would appear to have offered any

evidence on that day. The learned. District Munsif therefore heard the arguments of both the parties and reserved orders on 25-7-1972. On 29-7-

1972 he passed a speaking order in which he held that the judgment-debtor had the means to pay the decretal amount, and he consequently

directed the arrest of the judgment-debtor by 10-8-1972. In coming to this conclusion, the learned District Munsif was influenced by two

considerations, viz, (1) that the judgment-debtor had put forth the same contentions as he did hi E. P. 153 of 1971 and the same had been

negatived and his arrest ordered and (2) even in his counter to E. P. 34 of 1972, the judgment-debtor had admitted that he owned a house, though

he contended without producing the mortgage deed that it had been mortgaged for Rs. 1,000. This contention according to the learned District

Munsif lacked bona fides. This is in short the basis of the order against which the judgment-debtor preferred an appeal, C. M. A. No. 43 of 1972,

on the file of the Sub Court. Udumalpet. This appeal was dismissed with costs. The appellant''s request for a remand was refused on the ground

that more than sufficient opportunity had been given to him to had evidence and that there was no record to indicate that the appellant wanted to

adduce any evidence or that the executing court refused to grant him a chance to lead evidence. It is against this order that the present appeal has

been filed.

Learned counsel for the appellant strongly relics on what I consider to be obiter dicta occurring in the decision of A. S. P. Ayyar, J. in Kotha

Venkatasubbarao v. Sreeramulu, 1948 2 Mad LJ 648 : AIR 1949 Mad 470. In that case, the judgment-debtor pleaded that he had no means to

pay the decretal debt. But the executing court simply rejected that contention without recording the reasons contemplated in Section 51, Civil P. C.

and without finding positively that the judgment-debtor had had, since the date of the decree, the means to pay the amount of the decree or some

substantial part thereof and had refused or neglected to pay the same, or that, after the institution of the suit in which the decree was passed, he

had dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property

within the meaning of Section 51 (a) (2) and (b), or that he was likely to abscond, or leave the jurisdiction of the court within the meaning of

Section 51(a)(1). It was urged for the decree-holder in that case that the judgment-debtor was on a former occasion ordered to be arrested and

that full reasons had been then given by the court for his arrest and that was why the lower court failed to give reasons for its order upon the fresh

E. P. filed on the subsequent occasion. The learned Judge rejected this contention on the ground that the court acted without jurisdiction in

ordering the arrest of the judgment-debtor without recording its reasons u/s 51, Civil P. C. This is the ratio decidendi of that ruling. But, while

laying down that ratio the learned Judge went, if I may say so with respect, beyond the necessities of the situation to make the following remarks

by way of obiter.

My view is that reasons must be given every time a man is ordered to be arrested, and in every proceeding where he is ordered to be arrested,

even if it is on the same day; for cases differ, and much depends on lapse of time also. The legislature has thought fit to order arrest and detention

of civil debtors in jail only where the conditions prescribed in Section 51, Civil P. C. are strictly satisfied. The lower court did not even say that it

was relying on the reasons already given. It therefore acted without jurisdiction in ordering the arrest of the petitioner without recording its reasons

u/s 51, Civil P. C.

The obiter dicta would appear to indicate that if the lower court had said that it was relying on the reasons given in the previous order, the learned

Judge might have held that it had complied with the provisions of Section 51, Civil P. C. However, the facts of this case are different and there has

been no marked lapse of time between the date of the original order and the date on which the second E. P. was filed. As I have already

observed, the original order dated 20-1-1972 had fully discussed the reasons for directing the arrest of the appellant and that order was passed

after giving ample opportunity to the judgment-debtor to lead evidence in accordance with the procedure laid down in Section 51, Civil P. C.

Even, learned counsel for the appellant does not attack the earlier order on the ground of any procedural irregularity, though he complains that the

reasoning contained in that order is unsound. In pursuance of the said order the decree-holder paid batta for arrest of the judgment-debtor and the

court dismissed the E. P. because the judgment-debtor was not to be found. This order of dismissal is indefensible and was obviously made for

statistical purposes and did not lawfully terminate the E. P. The inability of the Amin to get at the judgment-debtor was not due to any default on

the part of the decree-holder. If the decree-holder had failed to pay batta, the court would have been justified in dismissing the E. P. But the

decree-holder did pay batta and would have paid batta again after the arrest warrant was returned for the reason that the judgment-debtor could

not be found. But without giving any opportunity to the decree-holder to pay batta, the court proceeded illegally to dismiss the E. P.

The very next day, after the dismissal of the E. P., the decree-holder filed the next E P. praying for the same relief. The subsequent E. P. must be

regarded in the circumstances merely as a continuation or revival of the earlier E. P. and to serve as a reminder to the court that though it had

ordered the arrest of the judgment-debtor on the merits, the Amin of the court had failed to carry out the order and therefore a fresh process for

the arrest of the judgment-debtor should issue, if as a result of an error committed by the court the original E. P. was dismissed, I see no reason

why the decree-holder should be penalised by having to face once more a de novo enquiry regarding the means of the judgment-debtor and by

having to secure a repetition of the order already passed. It would, in my view, be a wasteful and needless ritual in the circumstances of this case,

to issue notice again to the judgment-debtor, and enable him to raise and establish the plea which had already been judicially considered and

rejected. No fresh circumstance had, in fact, arisen or intervened between the date of the order of arrest and the date of the second E. P., such as

to justify the judgment-debtor in a seeking for another opportunity to prove his non-liability for arrest.

Learned counsel for the judgment-debtor says that even if the second E. P. is to be regarded as a continuation or revival of the earlier E. P., still

inasmuch as a fresh order for arrest is asked for, the procedure laid down in Section 51, Civil P. C. must be gone through again. I am unable to

agree. That procedure had been gone through in the earlier petition and an order directing the arrest of the judgment-debtor had been passed and

that order had not been challenged either by way of review or in appear. The second E. P. is, as I have said merely a continuation of the

proceedings in the earlier E. P., and it gives the court an opportunity to rectify its error in having dismissed the earlier E. P. for no fault whatever of

the decree-holder. The second E. P. must therefore be regarded merely as a request to the court to carry out the order, which it had already

passed, by issuing a fresh arrest warrant and directing the Amin or the process server of the court to arrest the judgment-debtor in accordance

with the earlier order. However, what happened in the court below was that the second E. P. was wrongly regarded as an independent E. P. and

notice was ordered again to the judgment-debtor, who filed a counter again and repeated the contention that he was not liable to be arrested.

However, he failed to adduce any evidence, with the result that his contention was overruled by both the courts below. The procedure adopted by

the executing court may be exposed to the objection that it is not strictly in accordance with Section 51, Civil P. C. But in the view I have taken of

the subsequent E. P., this objection would have no substance. The courts below ought to have treated the second E. P. merely as a revival of the

earlier E. P. and as a reminder to the court of its duty to carry out its own order by issuing a fresh process for the arrest of the judgment-debtor in

pursuance of the order dated 20-1-1972, in which case neither a fresh notice to the judgment-debtor nor a fresh enquiry would be necessary. The

consequence is the appeal fails and it will stand dismissed with costs.

Learned counsel for the appellant says that the obiter dicta of A. S. P. Ayyar, J. have been followed with certain qualifications by the Delhi High

Court in Gopichand Vs. Brahmo Devi, and that consequently he may be granted leave to prefer a Letters Patent appeal. Leave granted.