Naresh Kumar vs Social Mutual Benefit Company Ltd. and Sh. Shiv Ram

Dev Darshan Sud, J.—The petitioner is aggrieved by the order passed by learned Civil Judge (Senior Division), Paonta Sahib directing the detention of the petitioner herein in civil prison for non payment of the decretal amount. The order passed by the learned Court below is extremely cryptic and in total violation of the law laid down in Jolly George Varghese and Another Vs. The Bank of Cochin, holding that mere inability to pay the decretal debt does not per se attract detention in civil prison. The Court holds:

We concur with the law Commission in its construction of S. 51, C.P.C. It follows that quandam affluence and current indigence without intervening dishonestly or bad faith in liquidating his liability can be consistent with Art. 11 of the Covenant, because then no detention is permissible u/s 51, C.P.C.

Equally meaningful is the import of Art. 21 of the Constitution in the context of imprisonment for nonpayment of debts. The high value of human dignity and the worth of the human person enshrined in Art. 21, read with Arts. 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, as developed further in Sunil Batra Vs. Delhi Administration and Others etc., , AIR 1979 745 (SC) and Sunil Batra v. Delhi Administration, W.P. No. 1009 of 1979, D/-20-12-1979 (SC) lays down the proposition. It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of Daridra Narayana (Land of poverty) is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Art. 21 unless there is proof of the minimal fairness of his willful failure to pay in spite of his sufficient means and absence of more terribly pressing claims of his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferable from Art. 11 of the covenant. But this is precisely the interpretation we have put on the Proviso of S. 51, CPC and the lethal blow of Art. 21 cannot strike down the provision, as now interpreted. (P.475)

I find nothing on the record to show that there is any fact to show or establish dishonest intention on the part of the judgment debtor to discharge his debt. The law on this point is now well settled and does not require any further elaboration. This petition is accordingly allowed and the order dated 8th August, 2011 passed by the learned Civil judge (Sr. Division), Paonta Sahib directing the detention of the petitioner herein in civil prison is set aside. It will be open to the decree holder to establish before the learned executing Court that the judgment debtor was possessed of sufficient means to pay the debt or that he had such means and after passing of the decree has deliberately disposed of his property in order to avoid the execution of the decree and in such circumstance the provisions of Order 21, Rule 37 would be attracted. The petition is disposed of with no order as to the costs.

The pending application(s), if any, shall also stands disposed of.