Pritam Singh vs M/s S.B. Saini Brothers

D.V. Sehgal, J.—This revision petition is directed against the order dated 21.2.1987 passed by the learned Senior Subordinate Judge, Hoshiarpur, directing that the judgment-debtor-Petitioner should be sent to civil prison.

The facts in brief are that the decree holder-Respondent which is a partnership firm filed a suit on 14.7.1970 against the Petitioner by impleading his proprietary concern M/s Pritam Radio also as a Defendant for recovery of Rs. 51,245.50 as the price for the goods supplied to him. This suit was decreed on 21.5,1973. No interest pendente lite or future interest was granted. In execution of the decree the property belonging to the Petitioner was attached and sold by public auction. His sons and brothers, however, filed objections under Order 21 Rule 58 of the CPC that they were the owners of the said property. The objections were allowed by the executing Court in part holding that the Petitioner was owner of the property that was attached and sold to the extent of 6/12th share only. As a result the auction of the property was set aside On an appeal filed against the order of the executing Court, the learned Additional District Judge, vide judgment dated 14.6.1982 held that the Petitioner had 5/12th share in the said property. When further proceedings to sell the share in the property held to be so belonging to him were being taken by the executing Court, the grand sons of the Petitioner filed another objection application that they were the owners of of the said share. These objections are still pending adjudication in the executing Court.

The Respondent finding that unending proceedings were going on and it was not able to realise the decrial amount by sale of the share in the attached property belonging to the Petitioner, filed an application under Order 21 Rule 37 of the CPC in the executing Court stating that the Petitioner is setting up his relations for riling objections and was thus impeding the execution of the decree. A prayer was, therefore, made that he should be given a notice and detained in civil prison. Vide order under revision, the learned Senior Subordinate Judge, has observed that in spite of the fact that the money decree was passed on 21 5.1973, the Petitioner had not paid anything so far and the decree was thus being flouted. It was further observed that it is evident that the Petitioner has sufficient means to make payment of the decretal amount but he was avoiding the same and thus the impugned order was passed.

I have heard the learned Counsel for the parties. Section 51 of the Code of Civil Procedure, inter alia, provides thus:

Powers of Court to enforce execution:

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(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 ;

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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.

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 is thus clear that unless one of the conditions specified in the proviso to Section 51 of the CPC is present, arrest and detention of the judgment debtor cannot be ordered. It is not the case of the Respondent that the Petitioner is likely to abscond or leave the local limits of the jurisdiction of the executing Court with the object or effect of obstructing or delaying the execution of the decree nor any material has been brought on the record that after institution of the suit in which the decree has been passed, he has dishonestly transferred, concealed or removed any part of his property or committed any other act of bad faith in relation to it. It is also undisputed that the decree which is under execution is not for a sum for which the Petitioner was bound in a fiduciary capacity to account. No doubt the learned trial Court has observed that the Petitioner has the means to pay the amount of the decree but this finding is not based on any material before it. The application filed by the Respondent and the affidavit supporting it did not contain even a bare averment that the Petitioner has sufficient means to pay the amount of the decree. I am, therefore, of the considered view that since none of the conditions specified in proviso to Section 51 ibid was satisfied, the order to arrest and detain the Petitioner in prison is without jurisdiction.

There is no gainsaying the fact that the execution of the decree has been abnormally delayed. After the objections filed by the brothers and sons of the Petitioner that they were the owners of the Property which has been attached in execution of the decree had been decided and it was finally held by the learned Additional District Judge vide his judgment dated 14.6.19.82 that the Petitioner has 5/12th share in the said property, it is beyond comprehension what objections on behalf of the grand-sons of the Petitioner could be entertained. Even if it is a coparcenaries property his share therein has already been determined at 5/12th of the whole which can certainly be attached and sold so as to satisfy the debt which the Petitioner owes and is incorporated in the decree under execution. I would, therefore, direct the executing Court to decide these objections within two months and in case these are dismissed, to proceed to sell the share of the Petitioner which has already been attached by public auction so as to realise the decretal amount. The observations made herein shall, however, not prejudice the merits of the objection application pending before it.

In view of the above discussion, I allow this revision petition and set aside the order dated 21.2.1986. There shall, however, be no order as to costs.