B.R. Chandran vs Indian Bank

K.M. Natarajan, J.—The judgment debtor in E.P. 115 of 1984 on the file of the Sub-Court, Vellore, has preferred this revision petition challenging the legality and correctness of the order of arrest passed by the said court. It is seen that the respondent (decree holder) filed a petition for arrest of the petitioner for recovery of the amount due under the money decree in O.S. 497 of 1980 under O. 21, Rr. 22 and 37 and detention in civil prison under the provisions of S. 51 and O. 21, R. 38, C.P. Code. The said application was resisted by the judgment-debtor on the ground that the decree holder has not given credit to several payments made by the judgment debtor. Further, he has been regularly paying Rs. 10 per day for the decree debt and a sum of Rs. 3,310 is standing to the credit of the judgment-debtor. It is further stated that the amount realised from the realisation on the authority of the Insurance Policy is also not credited to and there is no merit in this petition and the petition has to be dismissed.

The court below, without applying its mind to the scope of S. 51 and O. 21, Rr. 37 and 38, C.P. Code, and without considering the contentions raised by the parties, simply ordered arrest by one line order, which reads:--

Part satisfaction of Rs. 250 recorded, Amount paid is too law. Arrest by 23-12-86.

At the outset it is not a speaking order and on that score it is liable to be set aside. Further the learned counsel for the revision petitioner also drew my attention to the decision of this Court reported in Ganesa Nadar v. Chellathi Ammal 100 L.W. 431, where the Chief Justice has held as follows:--

The proviso to S. 51, C.P.C. in clause (c) thereof refers to refusal or neglect to pay by the judgment-debtor. Refusal or neglect envisages the capacity to pay but deliberate non-payment. Such refusal or neglect cannot be said to have been established in the instant case.

The view of the lower Court was that instead of paying the decretal amount in full the judgment-debtor is making payments only by instalments and that since he has waived the right to file a counter he must be held to have the means to pay the decretal debt. Merely because a judgment-debtor possesses immovable property an order of detention in civil prison cannot be made for his failure to pay. It is obvious that the decree-holder is utilising the provisions of O. 2, R. 38, C.P.C. merely as a lever to force payment without taking recourse to the proceedings for attachment and sale of the immovable property. The petition for arrest in this case clearly appears to be wholly mala fide. It is open to the decree-holder to file a petition for attachment and sale of the immovable property.

In Alagappa v. Rajaguru 98 L.W. 189=1985-1-M.L.J. 331 it has been held as follows:--

In this case, nothing is found in the impugned order that the judgment-debtor is having funds or that he is purposely delaying to pay the decretal amount. Under these circumstances, the impugned order of the executing Court has to be set aside and it is accordingly set aside and the civil revision petition is allowed.'' The matter is remitted to the executing court for fresh disposal. The executing court after taking up the execution petition will issue notice to the parties and dispose of the matter after due enquiry according to law.

As laid down in the above decisions, nothing is found in the impugned order that the judgment-debtor is having any sufficient funds and that he is purposely evading and delaying the payment to the decree-holder, and as such it is clear that the court below has not at all applied its mind to the scope of the provisions under O. 21, Rr. 37 and 38 and S. 51, C.P. Code, and the ingredients which are necessary for ordering arrest. Hence, the order passed by the court below is unsustainable and it is liable to be set aside. In the result, the revision petition is allowed, the order of the court below is set aside and the matter is remitted back to the court below which is directed to restore the petition, give opportunity to the parties to let in necessary evidence and dispose of the petition as expeditiously as possible, in any event within one month from the, date of receipt of the records and the order from this Court. No costs.