M. Tamilselvan vs K.M. Ramasamy

R. Mala, J.—This Civil Revision Petition arises out of the fair and decretal order dated 10.9.2007 made in R.E.P. No. 7 of 2005 in O.S. No. 41 of 2003 on the file of the District Munsif Court, Sankari.

The factual matrix of the case is as follows :

(i) The First Respondent herein as a Plaintiff filed a Suit in O.S. No. 41 of 2003 for recovery of money due and obtained a decree in his favour on 25.8.2003 and the First Respondent herein has also filed R.E.P. No. 7 of 2005 to order arrest of the First Respondent therein, who is the Revision Petition herein.

(ii) The Executing Court after hearing both sides and made enquiry, ordered arrest, since the Petitioner/First Respondent therein has not made payment, against which, the present Revision Petition has been preferred by the First Respondent therein.

The learned Counsel for the Revision Petition submitted that the impugned order dated 10.9.2007 is hit by illegality, because before issuing warrant of arrest, the judgment-debtor should be given an opportunity to put-forth his defence, but such procedure has not been followed. So the order of arrest made by the Executing Court is illegal. To substantiate his arguments, he relied upon the judgment of this Court reported in Senthil Kumar and another v. K.M.N. Surendran, 2012 (3) CTC 294, and the judgment of the Madurai Bench of this Court reported in Ganesh v. Sankaran and another, 2006 (3) CTC 546. Hence, he prayed for allowing of the Civil Revision Petition.

Even though the Respondents were served with notice, no one representing on behalf of the Respondents and the names of the Respondents were printed in the cause list.

Considered the submissions made by the learned Counsel for the Revision Petition and perused the materials available on record.

The First Respondent herein as a Plaintiff filed a Suit in O.S. No. 41 of 2003 and he obtained a decree in his favour on 25.8.2003 and the decree amount is Rs. 59,516/- along with subsequent interest, it comes to Rs. 65,191/- and together with costs, it comes to Rs. 72,293.50. Therefore, the First Respondent herein has filed R.E.P. No. 7 of 2005 for recovery of total amount of Rs. 72,293.50.

On a perusal of records, it reveals that a notice was issued to the Revision Petitioner/judgment-debtor through Court on 7.2.2005 and the Revision Petitioner herein has entered appearance on 8.4.2005 and he filed his counter and the matter was posted for enquiry on 11.8.2006, the Counsel appearing for the Respondent has made the following endorsement :

"The Respondent willing for monthly instalments of paying decree amount."

After the above endorsement made, the Executing Court has passed the following order :

"As per the endorsement by the Respondent Counsel, hence, payment of Rs. 1,000/- ordered. Payment of Rs. 1,000/- by 4.9.2006."

However, the matter was adjourned to 4.10.2006 and then it was adjourned to 14.11.2006 for further payment of Rs. 1,000/- and Rs. 2,000/- has been received towards part satisfaction. Then the matter was posted on 20.11.2006 for further payment. But, no payment has been made till 8.12.2006.

On 8.12.2006, the Executing Court has made an endorsement that further payment is not made and PW1 is present and his Chief Proof Affidavit is filed and the matter stands adjourned to 12.12.2006 for recording means evidence.

At that time, the Revision Petition herein has filed R.E.A. No. 88 of 2006 for reception of additional counter and it was received on 16.12.2006. Then it was posted for cross-examination of PW1 on 22.12.2006 and adjourned to 28.12.2006. On 28.12.2006, PW1 was cross-examined in full and Petitioner''s side evidence was closed.

The Respondent''s side evidence has been posted on 5.1.2007 and after several adjournments, on 19.1.2007, RW1''s Chief Proof Affidavit was filed and no document was filed and cross-examination was completed on 23.1.2007. For Respondent''s side evidence, it was adjourned to till 9.2.2007 and witness batta paid on 9.2.2007 and it was adjourned to 6.3.2007 and on that day, witness batta paid and it was posted on 12.3.2007.

On 12.3.2007, RW2 was examined in chief and Exs. B1 & B2 were marked. RW2 was cross-examined and his side evidence was closed on 26.7.2007 and Petitioner''s argument heard on 31.7.2007 and for hearing Respondent''s arguments, it was posted from 6.8.2007 to 22.8.2007 and on 22.8.2007, Respondent''s side arguments heard and posted "for orders". On 10.9.2007, the Executing Court has ordered for arrest, against which, the judgment-debtor/Revision Petition has preferred the present Revision Petition. The R.E.P. No. 7 of 2005 has been stayed and it was pending till today.

Now this Court has to consider as to whether the arrest ordered by the Executing Court suffers any illegality ? At this juncture, it is appropriate to extract Order 21, Rules 37, 38 & 40 of C.P.C., which are extracted hereunder :

Discretionary power to permit judgment-debtor to show cause against detention in prison.� (1) Notwithstanding anything in these Rules, where an Application is for the execution of a decree for the payment of money by the arrest and detention in the Civil prison of a judgment-debtor who is liable to be arrested in pursuance of the Application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the Civil prison :

Provided that such notice shall not be necessary if the Court is satisfied, by Affidavit, or otherwise, that, with the object or effect 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.

(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree holder so requires, issue a warrant for the arrest of the judgment-debtor.

Warrant for arrest to direct judgment-debtor to be brought up.� Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the costs (if any) to which he is liable, be sooner paid.

Proceedings on appearance of judgment-debtor in obedience to notice or after arrest.� (1) When a judgment-debtor appears before the Court in obedience to a notice issued under Rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his Application for execution and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the Civil prison.

(2) Pending the conclusion of the inquiry under sub-rule (1) the Court may, in its discretion, 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 when required.

(3) Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of Section 51 and to the other provisions of this Code, make an order for the detention of the judgment-debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest :

Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied.

(4) A judgment-debtor released under this Rule may be rearrested.

(5) When the Court does not make an order of detention under sub-rule (3), it shall disallow the Application and, if the judgment-debtor is under arrest, direct his release.

(6) During the temporary absence of the judge who issued the warrant under Rule 37 or 38, the warrant of committal may be signed by any other Judge of the same Court or by any judicial officer superior in rank who has jurisdiction over the same locality or where the arrest is made on a warrant issued by the District Judge the warrant of committal may be signed by any Subordinate Judge or District Munsif empowered in writing by the District Judge in this behalf, and the Judge signing the warrant of committal in the above cases shall also have the same powers as the Judge who issued the warrant in respect of passing such orders as may be appropriate under sub-rules (1), (3) & (5) of this Rule.

(7) No judgment-debtor shall be committed to the civil prison or brought before the Court from the custody to which he has been committed pending the consideration of any of the matters mentioned in sub-rule (1) unless and until the decree-holder pays into Court such sum as the Judge may think sufficient to meet the travelling and subsistence expenses of the judgment-debtor and the escort."

The learned Counsel for the Revision Petition relied upon the decision of Madurai Bench of this Court, reported in Ganesh v. Sankaran and another, 2006 (3) CTC 546, wherein it was held that before ordering arrest, the Executing Court shall hold an enquiry and give a finding as to the correct means of the judgment-debtor to discharge the decree. The Executing Court should follow the procedure laid down under Order 21, Rules 39 & 40 of C.P.C. It is appropriate to incorporate Paras 18 & 19 of the judgment, which reads as follows :

"18. In the above cited case, the decision in Jolly George Varghese v. Bank of Cochin, AIR 1980 SCC 470, was relied on. So, as per the principles laid down by the High Court and the Supreme Court, the Executing Court shall give reasons before ordering arrest. So the decision relied on by the Respondent will not be helpful to the Respondent, in view of the decision of the Honourable Supreme Court.

The Executing Court shall hold an enquiry and give a finding as to the correct means of the judgment-debtor to discharge the decree before ordering arrest under Rule 37 of the C.P.C. The Executing Court should follow the procedure laid down in Rule 39 & 40 of the C.P.C. In these Petitions, the Executing Court did not observe the principles laid down by the High Court in M. Muthuswamy v. Supasri Chit Funds, Coimbatore, 2000 (2) CTC 20 and by the Supreme Court in Jolly George Varghese v. Bank of Cochin, AIR 1980 SCC 470. Hence, the order of the Executing Court is liable to be set aside."

In the above decision, it was held that the Executing Court has passed the following order :

"Part satisfaction for Rs. 15,000/- recorded.

Arrest by 27.9.2005."

The above order has been challenged by the judgment-debtor. But in the case on hand, on the side of the Revision Petition, RW1 and RW2 were examined and Exs. B1 & B2 were marked. After giving fair opportunity to both the parties only, the Executing Court has order arrest. So the above citation is not applicable to the facts of the present case.

It is appropriate to consider the another decision of this Court relied upon by the learned Counsel for the Revision Petition reported in Senthil Kumar and another v. K.M.N. Surendran, 2012 (3) CTC 294. It was held that order of arrest passed by the Executing Court without giving a finding regarding the means of the judgment-debtor to pay the decree amount is not one without jurisdiction as the order of arrest is only under Order 21, Rule 37(2) of C.P.C. The Executing Court should necessarily go into the question of means of the judgment-debtor to pay the decree amount after the latter is arrested and brought to Court and before deciding whether the judgment-debtor has to be committed to prison or not in execution of the decree. It is appropriate to incorporate Paras 6 & 7 of the judgment, which read as follows :

"6. The only legal issue which arises for consideration is whether the procedure required to be followed by the Executing Court while ordering arrest and detention of the judgment-debtors was followed by the Executing Court in the instant case. This Court had an occasion to consider the procedure required to be followed while considering an Application under Order 21, Rule 37(1), C.P.C. in M.M. Saleem v. R. Praveen Kumar Reddy, 2010 (5) CTC 469 and held as follows :

I have heard the learned Counsel for the parties and given my anxious consideration to the issue raised in the present Revision. Order 21, Rule 37(1) provides that where an Application is for execution of a money decree by the arrest and detention in Civil prison, the Court instead of issuing a warrant of arrest to the judgment-debtor, issue of notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to Civil prison. In terms of Proviso to Rule 37(1) such notice shall not be necessary if the Court is satisfied, by Affidavit, or otherwise that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Courts. Rule 40 states, when a judgment-debtor appears before the Court I obedience to a notice issued under Rule 37, or is brought before the Court after being arrested in execution of a money decree, Court shall proceed to hear the decree holder and take all such evidence and then give an opportunity to the judgment-debtor to show cause why he should not be committed to the Civil prison. Section 51 of the Code states that before an order of arrest and detention in prison is made, the Court should give an opportunity to the judgment-debtor for showing cause as to why he should not be committed to prison for reasons to be recorded in writing is satisfied of any of the requirements prescribed in Clauses (a), (b) or (c) of the Proviso. This Court in Namachivaya Mudaliar v. Manickavelu and Co., AIR 1972 (Mad.) 292, held that after reading Section 51 and Rules 37 & 40 of Order 21, CPC. It is clear that the Proviso to Section 51 is applicable and the Court is bound to record in writing its specification of one of the conditions prescribed in the Section, only when it commits a person to prison and not when issuing a warrant of arrest. This decision was referred to by the Division Bench in P.G. Ranganatha Padayachi v. Mayavaram Financial Corporation, AIR 1974 (Mad.) 1, and after discussing the law on the subject held thus :

"10. To sum up therefore, the order or arrest passed by the Executing Court without giving a finding regarding the means of the judgment-debtor to pay the decree amount is not one without jurisdiction as the order or arrest is only under Order 21, Rule 37(2). Needless to say that the Executing Court should necessarily go into the question of means of the judgment-debtor to pay the decree amount after the latter is arrested and brought to Court and before deciding whether the judgment-debtor has to be committed to prison or not in execution of the decree."

The above referred decision in the case of Namachivaya Mudaliar and P.G. Ranganatha Padayachi, were relied on by this Court in the case of Chinnaraj and another, referred supra and this Court held that there is nothing in the Code, which compels the Court to give an opportunity to the judgment-debtor or the decree-holder to adduce evidence and record it reasons in writing before even passing an order of arrest against the judgment-debtor. Though, the Executing Court referred to the decision of this Court in the case of Chinnaraj and another referred supra, the order passed by the Executing Court does not assign any reason that the Court is satisfied that there are Prime facie material before the Court for proceeding under Order 21, Rule 37. This has to be culled out only from the order as the order has to speak for itself and every decision should be supported by reasons. The power under Rule 37 is not just an innocuous matter, as the decision whether to issue of warrant of arrest or to issue a show cause to the judgment-debtor as to why he should not be arrested are matters having an impact on human dignity. The Hon''ble Supreme Court in Jolly George Varghese v. The Bank of Cochin, AIR 1980 SC 470 had observed how gruesome and obnoxious is the remedy of incarcerating a debtor for an unpaid debt under modern conditions and in the contest of human rights. As observed earlier, perusal of the order passed by the Executing Court its clear that apart from referring to the decision of this Court in the case of Chinnaraj, referred supra, the Court has not recorded its satisfaction and mechanically proceeded to order arrest. It is relevant to note that in the Counter Affidavit, the Petitioner/judgment-debtor has specifically stated that the copy of the means Affidavit filed along with the Execution Petition was not served. Therefore, even going by the language of Rule 37(1) of Order 21, the satisfaction of the Court is a sine qua non for issuing an order of arrest. The term "satisfied" used in the Proviso cannot be held to be an empty expression especially, when the matter involves human rights. This satisfaction of the Court to invoke the power should find place in the order and it should be apparent from the face of the record and therefore, it is necessary for the Court to record certain reasons as to why it is satisfied that the power under the Proviso to Rule 37(1) of Order 21, C.P.C. has been invoked. An order without reasons has been held to be an order in violation of the Principle of Natural Justice. This Court in K.AL.R.M.R.M. Alagappan v. Rajaguru and Co., 1985 (1) MLJ 331, after referring to the judgments of the Hon''ble Supreme Court in Jolly George Varghese and another v. The Bank of Cochin, AIR 1980 SC 470; Rama Narayan Agarwal v. State of U.P., 1983 (4) SCC 276 : AIR 1984 SC 1213, held thus:

"6. � � � In this case, nothing is found in the impugned order that the judgment-debtor is having funds of that he is purposely delaying to pay the decretal amount. Under the circumstances, I am of the view that the impugned order of the Executing Court, has to be set aside and it is accordingly set aside and this Civil Revision Petition is allowed."

In the instant case, the Executing Court merely recorded the fact that the First Petitioner is receiving monthly pension and he has not been declared as an insolvent and unless an order of arrest is passed, the Petitioner would not pay the decree amount and therefore, ordered arrest. As noticed above, it is necessary that the satisfaction of the Court for issuing an order of arrest has to be recorded and such satisfaction should find place in the order and it should be apparent from the face of the record and it is necessary for the Executing Court to record as to why it is satisfied that the power under the Proviso to Rule 37(1) of Order 21, C.P.C. is invoked."

Considering the above decisions along with the facts of the present case, in the instant case, as soon as R.E.P. No. 7 of 2005 has been filed by the decree holder/First Respondent herein, notice has been issued to the judgment-debtor/Revision Petitioner. The Revision Petitioner herein as the Respondent entered his appearance and filed his counter and contested the matter. He has also made an endorsement that he is willing to pay the decree amount in instalments and then, the matter was adjourned for payment of amount. He paid two instalments and thereafter, he did not pay the amount. So the executing Court posted the matter to prove the means of judgment-debtor. At that time, the Revision Petitioner herein has filed R.E.A. No. 88 of 2006 for reception of Additional Counter and it was received on 16.12.2006. Then it was posted for cross-examination of PW1 and after closing Petitioner''s side evidence, RW1 & RW2 were examined, Exs. B1 & B2 were marked. After hearing arguments of both sides, arrest order has been passed by the executing Court following the provisions under Order 21, Rule 37 & 40 of C.P.C.

In the order of arrest, it was specifically mentioned that two months simple imprisonment in the Civil prison has been ordered to the judgment-debtor/Revision Petitioner and the decree holder/First Respondent herein is directed to pay the arrest batta within three days from the date of order. It is appropriate to extract para-9 of the order passed by the executing Court, which reads as follows :

VERNACULAR MATTER

It shows that the executing Court has followed the provisions under Order 21, Rules 37 & 40 and it is not violated any provisions of law. It is true, there are two limbs under Order 21, Rule 37 of C.P.C., one is before order of arrest and another is at the time of committing the judgment-debtor to the Civil prison.

As per Section 51(c) of C.P.C., by arrest and detention in prison, (for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that Section), the Executing Court has given an opportunity to the Revision Petitioner to adduce his evidence. As per the citation Senthil Kumar and another v. K.M.N. Surendran, 2012 (2) CTC 294, the learned Judge considering the decision of Chinna Raj and another, held that the Court has recorded its satisfaction and mechanically proceeded to order arrest. But in the case on hand, the executing Court has given an opportunity to the Revision Petitioner to examine RW1 & RW2 on his side. Considering the evidence and after satisfying that the Revision Petitioner has possessed sufficient means to pay the amount, ordered arrest.

Learned Counsel for the Revision Petitioner submitted that in para-8 of the order, the Executing Court considering age and physical condition of the decree holder, order arrest, which is against law. It is true, the physical condition of the decree holder is not a matter to be considered while ordering arrest. But in Para-8 itself, the Executing Court has considered each and every aspect of the evidence and came to the conclusion that the judgment-debtor has means to pay the decree amount. Hence, I am of the view that the Revision Petitioner has sufficient means to pay the decree amount. The Revision Petitioner has followed dilatory tactics in each and every stage of the Execution proceeding with a view to drag on the proceedings to prevent the decree holder/First Respondent herein from enjoying the fruits of the decree. In such circumstances, I am of the considered opinion that the order of arrest passed by the executing Court has not suffered any infirmity or illegality and hence, it is hereby confirmed. The Civil Revision Petition dismissed as devoid of merits.

In fine, �

� This Civil Revision Petition is dismissed, confirming the fair and decreetal order dated 10.9.2007 made in R.E.P. No. 7 of 2005 in O.S. No. 41 of 2003 on the file of the District Munsif Court, Sankari.

� The connected Miscellaneous Petition is closed

� No costs.