Balbir Singh vs Punjab and Sind Bank and others

N.K. Agrawal, J.—The Civil judge (junior Division), Dabwali, by order dated June 9, 1998, in the execution proceeding, ordered detention of the judgment-debtor, Balbir Singh, in civil prison for one month as the latter had failed to pay the decretal amount to the decreeholder, Punjab and Sind Bank, despite having availed of sufficient time. The executing court noticed that execution proceeding was pending since January 11, 1992. It, therefore, took the view that the judgment-debtor was not, any more, entitled to any concession.

This is a civil revision by the judgment-debtor against the order dated June 9, 1998, passed by the executing court.

The brief facts, giving rise to the execution petition, are that Balbir Singh, took a loan amounting to Rs. 75,000 on February 11, 1984, from Punjab and Sind Bank. Land measuring 92 kanals 19 marlas, situated in village Risalia Khera, Tehsil Dabwali, District Sirsa, was put by the borrower under equitable mortgage. However, the borrower, Balbir Singh, could not repay the loan and the bank, therefore, filed, in the year 1990, a civil suit for recovery of money. The suit was decreed on October 30, 1991, by Sub-Judge, Dabwali. It was made clear by the court, in the decree, that the plaintiff-bank shall be at liberty to recover the decretal amount from the sale proceeds of the agricultural land, mortgaged by the defendant with the bank under the mortgage deed dated February 10, 1984.

Learned counsel for the petitioner, the judgment-debtor has argued that the decreeholder bank did not make any effort to recover the money by selling the mortgaged property nor issued any show-cause notice as required under rule 37(1) and rule 40 of Order 21 of the Code of Civil Procedure. The judgment-debtor, Balbir Singh, was arrested on June 9, 1998, in pursuance of the order of the executing court, dated December 20, 1997. It is contended by learned counsel that the order of the executing court to send the judgment-debtor to civil prison is illegal. The procedure, as laid down in rules 37 and 40 of Order 21, was not followed. A show-cause notice is required to be given before arrest under rule 37 and an enquiry is to be made under rule 40. The procedure laid down in section 51 of the Code of Civil Procedure, has also not been followed. The property under mortgage should be attached and sold in the first instance. The extreme step of arrest and detention of the judgment-debtor in the civil prison can be taken only if the decree remains unsatisfied after attachment and sale of the mortgaged property. It is argued that the decree can be fully satisfied by selling the property mortgaged with the decreeholder.

Learned counsel for the respondent decreeholder has, on the other hand, supported the order of detention with the plea that efforts were made several times for the sale by auction of the property of the judgment debtor but due to his influence, auction could not be successfully held. It is further argued that the judgment-debtor had not permitted any one to participate in the auction and to purchase the property. He has sufficient means to pay but he has wilfully not satisfied the decree.

Learned counsel for the judgment-debtor has relied upon a decision of this court in Bhoop Singh Jakhar alias Ram Sarup v. Gauri Shankar [1987] 1 PLR 363. It was held there 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 is satisfied about the matters specified in clauses (a) to (c) of the proviso to section 51 of the Code of Civil Procedure.

In Jolly George Varghese and Another Vs. The Bank of Cochin, , it has been held that arrest and detention of a judgment-debtor is violative of article 11 of the International Covenant on Civil and Political Rights and article 21 of the Constitution of India.

On a consideration of the matter, it is found that even it several attempts were made for recovering the decretal amount by attachment and sale of the property of the judgment-debtor, it would not straight-away permit the executing court to detain the judgment-debtor without following the procedure as laid down in rules 37 and 40 of Order 21. Under rule 37, it is necessary for the executing court to issue a notice, calling upon the judgment-debtor to appear and show cause why he should not be committed to the civil prison. Such a notice is, however, not necessary where the court is satisfied by affidavit or otherwise that with the object of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the court. Under rule 40 also, in the event of arrest of the judgment-debtor, it is necessary for the executing court to proceed to hear the decreeholder and take all such evidence as may be produced by him in support of his application for execution and to also give the judgment-debtor an opportunity to show cause why he should not be committed to the civil prison. Pending the conclusion of the inquiry, the court may order the judgment-debtor to be detained in the custody of an officer of the court or release him on his furnishing security to the satisfaction of the court for his appearance. After the conclusion of the inquiry, the court may, subject to the provisions of section 51 and other provisions of the Code, make an order for the detention of the judgment-debtor.

In view of the aforesaid discussion, it is found that the learned executing court has not issued any show-cause notice in the matter. It is necessary to follow the procedure as laid down in rules 37 and 40 of Order 21 read with section 51 of the Code of Civil Procedure.

In the result, the civil revision petition is allowed and the order of detention is quashed. The executing court may proceed further against the judgment-debtor in accordance with law.