Jannalagadda Venugopal vs Syndicate Bank

J. Eswara Prasad, J.—Heard the learned Counsel for the petitioner. The learned Counsel for the respondent is absent.

The petitioner is the judgment-debtor in O.S.No.99/80 on the file of the Subordinate Judge, Kavali. In execution of the decree, the respondent-Bank filed an application for arrest of the petitioner. According to the affidavit of the petitioner filed in this Court in CMP No.19267/89, he filed a counter before the lower Court stating that he was not passed of any property and that he was not employed and that he had no means to discharge the decreetal amount. In spite of the said averments in the counter, the learned Subordinate Judge, Kavali, straight away ordered the arrest of the petitioner. No doubt, the petitioner was absent when called on 29-11-89 and he was set ex parte. But yet, the Court cannot ignore the mandatory provisions of Section 51 of the Civil Procedure Code. Proviso to Section 51 is in the following terms:

"Section 51 :

Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debt or" an opportunity of showing course why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied:-

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree-

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or

(b) that the judgment-debtor has or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account."

Explanation:- In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree."

It can be seen that the petitioner failed to avail the opportunity given to him by not being present in Court when the case was called. All the same, the fact remains, he filed a counter-affidavit which the Court was bound to go through, since it is obligatory on the part of the Court to record reasons in writing that it is satisfied with regard to any one of the matters covered by the proviso, or with all of them, before directing arrest of the judgment-debtor. The requirement of law is no longer in doubt in view of the judgment of a Division Bench of this Court in K.V.J. Sastry and Ors. v. Bank of India, 1978 (2) APLJ 335.

It is expected that the Courts do not ignore the mandatory provisions of law and pass orders which are bound to be reversed by the higher courts, necessitating unnecessary multiplicity of proceedings. The learned Judge should have kept this in mind before passing the illegal order under revision and avoided wastage of time of the Courts.

The order under revision is accordingly set aside and the revision in allowed. The lower Court will dispose of EP No. 16/87 afresh after following the procedure laid down in proviso to Section 51 CPC expeditiously, within two weeks from the date of receipt of this order.

No order as to costs. Despatch the records and the order within ten days.