Kadru Kunhu Abdul Karim vs Narayana Pillai Raghavan Pillai

P. Subramonian Poti, J.—An objection by the judgment-debtor seeking adjudication of want of mean of the judgment-debtor to pay the decree amount has been rejected by the execution court. This objection was raised in answer to proceedings in execution for arrest and detention of the judgment-debtor in the civil prison. The question whether the judgment debtor had means to pay and was neglecting such payment notwithstanding such means had been considered earlier and by order dated 22-7-1960 the court had found that there were sufficient grounds for the decree-holder to seek execution by arrest and detention of the judgment-debtor in the civil prison. In view of this order the execution court held that a fresh adjudication was not called for. The view taken by the execution court has been adopted by the appellate court also and it is this that has been challenged in second appeal. Section 51 of the CPC provides that, on the application of the decree-holder, the court may, subject to such conditions and limitations as may be prescribed, order execution of the decree and one of the modes prescribed for execution of the decree is by arrest and detention of the judgment-debtor in prison. The proviso to Section 51 is relevant for the purpose of this appeal and I shall extract the said proviso here:

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-debtor an opportunity of showing cause 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.

The case is one which, according to the decree-holder falls under clause (d) of the proviso. What is contended is that on an earlier occasion the court had been satisfied, for reasons recorded in writing, that the judgment-debtor has the means to pay the amount of the decree or some substantial part thereof and he neglected to pay the same. Whether this adjudication would debar a fresh adjudication in the same execution proceedings is the question that is raised. According to learned counsel for the appellant the means of the judgment-debtor to pay the decree amount may vary from time to time and if at the time when execution is sought to be taken against him by arrest and detention in prison he can show that he has no means, in spite of an earlier order for his arrest and detention, he is liable to succeed in his objection. According to learned counsel the alteration in the circumstances of the judgment-debtor as to his means may be relevant in considering whether he is liable to be arrested and detained in prison.

On the plain language of Proviso (b) to Section 51 of the Code of Civil Procedure, I do not think the contention of the appellant is tenable. The Court, in order to permit execution by detention in prison must be satisfied either that the judgment-debtor has the means to pay or has had since the date of the decree the means to pay and he refuses or neglects or has refused or neglected to pay the same, as the case may be. If the court found on an earlier occasion that the judgment-debtor has means to pay the amount of the decree and he refuses or neglects to pay the same, on a subsequent occasion, when the question arises whether he is liable to be detained in prison, the earlier adjudication that he has means to pay would amount to holding in regard to the later occasion that he has had since the date of decree the means to pay the amount of the decree or some substantial part thereof and the adjudication on the earlier occasion that he refused or neglected to pay in spite of such means would amount to an adjudication that he has refused or neglected to pay the same in spite of the fact that he has had means. It is clear from the proviso (b) to Section 51 that it is not only a person who refused or neglects to pay in spite of the fact that he has the means to pay that is liable to be detained in prison but also one who, having had means to pay the same since the date of the decree has refused or neglected to pay the same. Therefore on the language of the section it is impossible to say that a fresh adjudication is called for when there is an earlier adjudication that the decree-holder has means to pay and is refusing or neglecting to pay the same or on the earlier occasion it is found that he has had since the date of the decree means to pay the same.

Learned counsel urges that the result of the construction that I have put up on the Section would be to punish a man who has no means to pay when he is sought to be detained in prison merely because he had such means some time since the passing of the decree. It is not for me to construe the section differently from what it reads on the face of it only to suit notions of right and wrong. There is no scope for construing the Section in a manner different from what it plainly reads. It is certainly not the function of the court to make law but to apply the law.

The construction that I have adopted here is the same as adopted by Raman Nayar J. (as he then was) in the decision in Ulahannan Job v. Prudential Trust (1964 KLT 1101). In a short paragraph, the learned Judge says "That this argument forgets the clause or has had since the date of the decree'' appearing in clause (b) of the proviso to Section 51 of the Code. The prior order for arrest amounted to a finding that the judgment-debtor had or had had since the date of the decree, the means to pay; and, that being so, the position remains, since the judgment-debtor is bound by that finding, that he has had since the date of the decree, the means to pay".

It is true that a different view has been taken in some decisions. But I notice that in all those decisions the language of clause (d) of proviso to Section 51 has not been noticed. Panchapakesa Aiyar J. in a very early decision of the Madras High Court in Venkatasubba Rao v. Sreeramulu (A.I.R. 1949 Mad 470) said thus:

It was urged by the learned counsel for the respondent that this judgment-debtor was on a former occasion, ordered to be arrested and that full reasons were then given for his arrest, and that the lower court had omitted to give the reasons now because of that. That order for arrest was not taken advantage of or carried out. This is a fresh application made months later. 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 it it is on the same day; for, cases differ, and much depends on lapse of time also.

The same learned Judge reiterated this in the later decision in S.K. Kuttalalingam Pillai Vs. S.V.N. Chinnakannu Pillai, . There again the language of clause (b) of proviso to Section 51 was not noticed. Justice Ismail of the High Court of Delhi in Gopichand v. Smt. Brahma (A.I.R. 1968 Del 101) followed the decision of Panhchapakesa Aiyar J. in Venkatasubha Rao v. Sreeramulu (A.I.R. 1949 Mad 470). There again the learned Judge did not rest his decision on the language of Section 51. The learned Judge considered the object of detaining the judgment-debtor in civil prison and then observed that--

It is some contumacious conduct on the part of the judgment-debtor and not mere inability to pay that renders him liable to be arrested and committed to Civil Prison.

If that be the case, then possibly the conclusion reached by the learned Judge may not be justified because the contumacious conduct contemplated by the section is a refusal or neglect to pay having had means to pay since the date of the decree. The learned Judge, though purporting to follow the decision of Panchapakesa Aiyar in Venkatasubha Rao v. Sreeramulu (A.I.R. 1949 Mad 470) and in S.K. Kuttalalingam Pillai Vs. S.V.N. Chinnakannu Pillai, has not apparently agreed fully with what has been said by Panchapakesa Aiyar J. as apparent from the following observation in the judgment:

Consequently, though I do not share the view that every time an order for arrest and detention in Civil prison of a judgment-debtor is made by a Court whether the interval between one order and a subsequent order is long or short, the Court must give an opportunity to the judgment-debtor and give reasons in writing as to the satisfaction about the fulfillment of the conditions contained in the proviso to Sec. 51 of the Code, if there had been a sufficiently long interval between the original order which has not been given effect to and a subsequent application for passing a fresh order, the Court must give an opportunity to the judgment debtor to show cause and must be satisfied that the conditions mentioned in the proviso to Section 51 of the Code are fulfilled at the time when the Court is called upon to make the subsequent order.

I fail to see how any question of interval of time would arise as relevant in applying clause (b) of proviso to Section 51 of the Code of Civil Procedure.

I must also notice a Division Bench decision of this Court which is very strongly relied on by learned counsel for appellant as supporting his view. The reference is to the decision in Francis v. Palai Central Bank Ltd., (1959(1) K.L.R. 909). That is a short judgment and I may, with profit, extract the entire judgment here: Judgment-debtor has preferred this appeal against the lower courts'' order dismissing his objection to the issue of warrant of arrest. His plea is that the has no means to pay the debt. The identical plea had been put forward by him on a prior occasion and after enquiring into the matter the court found that he had the means to pay the debt and that he was neglecting to pay the same. That order remains in force even now. Defendant''s attempt to have it reviewed has failed. It has also to be noted that in the present objection the defendant has not made any allegation that subsequent to the date of the prior order, he has lost any of the assets which were found to exist. On the other hand, it is conceded now that he is possessed of properties and the complaint is that they have been attached by the decree-holder. Under these circumstances no fresh enquiry into the means of the judgment-debtor at this stage was necessary. The lower court was right in rejecting the defendant''s objection petition.

The result is that this appeal fails and is dismissed with costs.

It is true that there is reference to the fact that defendant has not made any allegation that subsequent to the date of the prior order, he has lost any of the assets which were found to exist. But apparently that is not the basis of the decision and the question whether on the change in circumstances fresh investigation as to means is called for has not been considered in that decision nor has reference been made to the language of clause (b) of the proviso to Section 51 of the CPC with which I am concerned here. My learned brother Krishna Iyer J. in C. V. Xavier v. Canara Bank Ltd., Ernakulam (1969 K.L.R. 961) has noticed the Madras decisions referred to earlier and also the Division Bench decision of this Court to which I have referred. The construction for which counsel for appellant canvassed before me has been referred to by the learned Judge and according to my learned brother--

The humane spirit informing the proviso to section 51 is in keeping with such a construction.

But the learned Judge has not finally taken the view in that case that Sec. 51 must be construed in that manner and therefore I do not think that the learned Judge intended to depart from the rule laid down by my learned brother Raman Nayar J. in the decision to which I have adverted to earlier.

In these circumstances I hold that when it is once shown in execution that the judgment-debtor has means to pay and has refused or neglected to pay the same it would debar an adjudication on a subsequent occasion whether the judgment-debtor has had means to pay the decree amount since the date of decree and has refused or neglected to pay the same. If on the earlier occasion the court finds that since the date of decree judgment-debtor has had means and has refused or neglected that again would be an adjudication which would debar a fresh adjudication on the question on a subsequent occasion. In this view the earlier adjudication would be a bar for the investigation of the question again. Therefore the courts below were right in their view and hence the second appeal is dismissed. But in the circumstances the parties will bear their costs.