Shaik Mohammad Hussain vs Mada Reddaiah

Mr. Madhava Rao, J.—This is a revision against the order of the Munsif Magistrate, Raya choti, dated 14-6-1978 in E.P. No. 39 of 1977 rejecting the contention raised by the judgment-debtor that be is a small farmer and arresting him under Or. 21 rule 37 C.P.C. is illegal. Sri K. Parvathisam, the learned counsel for the petitioner, contended that even if the petitioner is not a small farmer and the extent of the land held by him is more than what is required to be under Act 7 of 1977, the lower Court erred in directing the arrest of the petitioner without complying with the provisions of Sec, 51 C.P.C. The learned counsel for the petitioner pointed out that this is mandatory on the part of the lower Court. He further contended that the Court below should have given a finding that the judgment-debtor is possessed of sufficient means to pay the amount of the decree or some substantial part thereof, but refused or neglected to pay the same. In the absence of such a finding, the order of arrest is illegal.

Mr. M.N. Narasimhareddy, learned counsel for the respondent-decree-holder, on the other hand contended that the petitioner-judgment-debtor filed a petition on the ground that he is a small farmer and therefore the Court should discharge him from the liability of the decree debt and dismiss the E P as the same gets abated under Sec. 4 of Act 7 of 1977. According to the learned counsel, the respondent-decree-holder also being a small farmer, the debt in question is not a debt exempted under Act 7 of 1977 and the question whether the petitioner-judgment-debtor is a small farmer or not is not relevant for the purpose of this petition.

The lower Court confined its enquiry to find out whether the judgment-debtor is a small farmer or not and found that he is not a small farmer as the land in his possession is Ac. 5-76 cents. E.P. No. 39 of 1977 was filed by the decree-holder within two years after the passing of the decree for the arrest of the judgment-debtor under Or. 21 Rule 37 (2), as the judgment-debtor failed to pay the decree amount. Therefore, when the lower Court found that the judgment-debtor is not a small farmer, it was justified in ordering the arrest of the judgment-debtor.

To appreciate the contentions raised by the learned counsel on both sides, it is necessary to note the provisions of Sec. 51 and Or. 29 rule 37 CPC. The relevant portion of Sec. 51 CPC is as under:

"51. Powers of Court to Enforce Execution.

(Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-

(a) .............

(b) ............

(c) by arrest and detention in prison for such period not exceeding the period specified in sec ion 58 where arrest and detention is permissible under that section.

(d) ............

(e) ............

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, (he Court, for reasons recorded in writing, is satisfied-

(a) ............

(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) ............

Or. 21 Rule 37 reads as follows:-

"37. 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."

It will be relevant to extract the provisions contained in Or. 21 rule 40 also which reads as under: -

"40. 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 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 enquiry 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 famishing security to the satisfaction of the Court for his appearance when required.

(3) Upon the conclusion of the enquiry 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,.

Sec. 51 C. P. C. speaks of two stages-one is of arrest and the other is of detention in the civil prison. The procedure laid down in the proviso to Sec. 51 has to be followed before the judgment-debtor is sought to be detained in prison i. e, before the judgment-debtor is sought to be detained in civil prison it is necessary for the Court to hear the judgment-debtor and find out whether the judgment-debtor has means to pay the amount of the decree or some substantial part thereof but refuses or neglects or has refused or neglected to pay the same. Clause (c) of Sec. 51 provides that the judgment-debtor could be arrested. The execution of the decree could be by arrest and detention in prison i.e., the judgment-debtor should be arrested and later he could be detained in prison. The two words viz, arrest and detention have been used in Sec. 51 designedly. In so far as Or. 21 rule 37 is concerned, it only provides for the issue of a notice as to why the judgment-debtor should not be committed to the civil Prison i. e., why he should not be detained. Sub-rule (1) of Rule 37 contemplates the issuance of a notice instead of issuing a warrant for arrest, calling upon him to appear before the Court on a day to be specified in the notice and show in the notice and show cause why he should not be committed to the civil prison. Notice of warrant of arrest of the judgment-debtor could be issued. That is the first stage of the proceedings for the detention of the judgment-debtor in the civil prison. For the issue of a warrant of arrest, it is now here laid down that the Court must give a finding that the judgment-debtor, having sufficient means to pay the amount of the decree, has refused or neglected to pay the same. Therefore, the Court in its discretion can issue a warrant of arrest only to secure the presence of the judgment-debtor in the court, or 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. Therefore, at the first stage of the proceeding i. e., for the mere arrest of the judgment-debtor, Sec. 51 C. P. C. does not contemplate an enquiry to find out whether the judgment debtor is possessed of the means to pay the amount of the decree or whether he refused to pay the same. The second part of it is about the enquiry. After the judgment-debtor appears in the court, in pursuance of the notice or after he is arrested and produced before the court, an enquiry will be conducted into the matter under Sec. 51 C. P. C. to find out whether the judgment-debtor, having sufficient means to pay the amount of the decree or substantial part thereof, refused or neglected to pay the same. Therefore, it is only before the judgment-debtor is committed to the civil prison i. e., detaining him in the civil prison, that an enquiry is necessary and not for the arrest of the judgement-debtor to be brought before the Court under Or. 21 rule 37 C. P. C.

Sri K. Parvathisam, learned counsel for the petitioner, relied upon the decision in T. Kunhiraman Vs. Pootheri Illath Madhavan Nair, in support of his contention that no warrant of arrest could be issued without such a finding being given,. The Honourable Judge while construing the proviso to Sec. 51, C.P.C. in paragraph 3 of his judgment held:

"The arrest of a citizen of the Indian Republic is a grave matter involving his fundamental rights. S. 51 C. P. C. has clearly staled, among other things, that a judgment-debtor should not be ordered to be arrested unless the court holds that he has had, since the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects to pay the same. This Court has held that the mandatory provisions of S. 51 C. P. C. must be complied with before arrest is ordered. The lower court does not say that in its opinion the judgment-debtor had since the date of the decree, the means, to pay the amount of the decree or some substantial part thereof and has refused or neglected to pay the same.

The order of arrest is therefore illegal and has to be set aside. It is phenomenally btried and runs:

"Respondent called. Absent, Vakil reports no instructions. Arrest by 16-71-955" No reason whatever is given as to why arrest is ordered, and the mandatory provisions of S''15 C.P.C. have been ignored. Mr. Sesha Aiyar says that as the petitioner was exparte reasons need not be given. I am afraid I cannot agree. Under oat law exparte order of arrest and orders of arrest are exactly on the same footing and See.51 C.P.C., makes no difference whatever between the two cases. Arrest after contest or exparte involves the same painful consequences to the man arrested".

It can be noted that in this decision the distinction between the arrest and detention in civil prison was not kept in view. The above decision was considered in P.G. Ranganatha Padayachi Vs. The Mayavaram Financial Corporation Ltd., where a Bench of the Madras High Court had considered the distinction between the arrest and the detention in the Civil prison. N.S. Ramaswami, J. speaking for the Bench considered this matter in detail after referring to the provisions of Sec. 51 and Or.21 rules 37 and 40. That appeal was filed against the order of arrest passed by the learned Subordinate Judge, Cuddalore in execution of a money decree. The order of the execution court is a one line order and it says: "No payment made. Arrest D1 and D2 by 9-4-1968. Patta after a week." The executing court has not recored any reason for ordering arrest except saying that no payment had been made. But a perusal of the relevant provisions of the CPC would show that the proviso to Section 51, which makes it obligatory on the part of the executing court, to give an opportunity to the judgment-debtor to show cause and record its reasons: applies not for ordering arrest of the judgment-debtor but only for committing him to prison. In other words, only before the executing Court orders the judgment-debtor to be detained in civil prison, it has necessarily to given an opportunity to the Judgment-debtor to show cause against such an order and the Court should also record its reason in writing for committing the judgment-debtor to prison. After referring to the decision in T. Kunhiraman Vs. Pootheri Illath Madhavan Nair, the learned Judge in paragraph 8 of the judgment observed as under:-

"The learned counsel, however, referred to wo decisions of this Court, both rendered by Panchapkesa Ayyar, J. They are Kanuabhiraman vs. Madhavan Nair (AIR 957 MAD 761 and Muthu Pathar vs. Mani Rao 69 Mad L.W. 299 : AIR 1956 Mad. 580). The learned Judge has observed in those cases that the mandatory provisions of Section 51 must be complied with before arrest is ordered even if the order is passed exparte. The learned Judge has not made any distinction between an order of arrest and an order of detention. We have to say with respect that the law has not been correctly stated in those decisions"

The learned Judge has observed that the mandatory provisions must be complied with before arrest is ordered. After referring to various authorities, the learned Judge ultimately summed up in the following terms:

"To sum up therefore, the 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 XXI 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 to execution of the decree".

In the instant case, it is suffice to mention that a similar question has arisen for consideration. It can be noted that even under Orient. 21 rule 40 the procedure laid down it that after the judgment-debtor is arrested and brought before the Court, an enquiry has to be conducted as contemplated under sec. 51 C.P.C Further a reading of Order 21 rules 40(1) and (3) extracted in the earlier part of the judgment makes it clear that in the enquiry the court has to be satisfied that the judgment-debtor, having means to pay the amount of the decree, has refused or neglected or refuses neglects to pay the decree amount. In such circumstances only, an order for detention could be passed by the Court. Under the proviso to Or.21 rule 40 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 15 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 is not sooner satisfied. Thus, after the enquiry as contemplated under proviso to Sec. 51, even if the Court is satisfied that the judgment-debtor has neglected or refused to pay the amount of the decree, he is still given an opportunity to pay the amount and he is not immediately committed to the civil prison.

The above discussion clearly points out that for the arrest of the judgment-debtor under Or. 21rule 37, an enquiry is not contempleded by the learned counsel for the petitioner and that the Court need not be satisfied that the judgment-debtor has means to pay the decree amount or has neglected or refused to pay the amount of the decree. No doubt this enquiry is necessary before committing him to civil prison. This proposition is supported by a decision of this Court in Suravarapu Putrayya vs. Maddukuri Veeraraju 1964 (ii) An. W.38. A similar point arose in the above case, Satyanarayana Raju, Officiating Chief Judge (as he then was) construing the provisions of Sec. 51, C.P.C. and Or.21 rules 37 and 40 held:

"Where a Court issued a warrant either under sub-rule (1) or under sub-rule (2) of rule 37, I does not do so with the intention of committing the person against whom the warrant is issued, to prison. It issues such a warrant only to secure the presence of such a person in Court. The provisions of Order 21, rule 40, will apply only at later stage, that is, after the judgment-debtor appears in Court in pursuance either of a notice or a warrant.".

Sarabasiva Rao, J (as be then was) also took the same view in Angati Venkateswarlu Konda vs. The Maharanipeta Military Mosque 1971 APHN 135. It is suffice to note that a Division Bench of the Kerala High Court consisting of Anna Chandy, J and Govinda Menon. J (as he then was) referred to the decision of the Madras High Court in Kunhiraman vs. Madhavan Nair AIR 1957 Mad. 761 and the decisions where the same view was taken and held :

"With great respect to the learned Judges who decided the cases we are unable to agree with the view taken in these cases."

In the instant case, the lower Court rejected the contention of the judgement-debtor that he is a small farmer. It will be relevant to note paragraph No. 6 of Judgement of the lower Court.

"Under the circumstances, I come to the conclusion that the respondent is not entitled to the benefits of Act 7 of 1977 and consequently the debt is not liable to be wiped of, Ex.B-1 is the certificate issued by the K. M. wherein the value of the properties held by the respondent is worth Rs. 40,000/-. The means with regard to the payment of the decree amount cannot be disputed as the respondent has got sufficient lands and means to discharge the debt. Under the circumstances, the petitioner has proved that the respondent has got lands and means to pay the decree amount and consequently he is liable for arrest."

It is alleged in the counter filed to the E.P., that for getting the judgement-debtor discharged invoking the benificial provisions of Act 7 of 1977 an independent application. E.A. 102/77 u/s 4 of the Andhra Pradesh Agriculture Indebtedeness (Reliet) Act,1977 (Act 7 of 1977) read with section 51 C.P.C. That E.A, is closed by the lower Court on the ground that the plea raised in the counter is the same as the point taken in that E. A. Now, the order of the lower Court discloses that after finding that the judgement-debtor is not a small farmer to invoke the aid of Act 7 of 1977, it did not go into the question, whether the judgement-debtor though bad sufficient means to pay the decree debt or a substantial part of it has either refused or neglected to pay the same. Instead it directly ordered arrest. Under Order 21 rule 37(1) the Court ought to have in the circumstances issued a notice calling upon the judgement debtor to appear on a specified day to show cause why he should not be committed to the civil prison. The order also does not narrate the circumstances that warranted the arrest of the judgement-debtor. If this arrest is for detaining him in civil prison, a finding that the judgement-debtor neglected or refused to pay the decree debt is necessary. On the other hand, if it is only to secure his presence to conduct the enquiry as contemplated by section 51 C.P.C., it would also be equally unnecessary if the judgement-debtor is present in the Court. Therefore, the order of the lower Court directing arrest of the judgement debtor is not clear in its purpose since it is a simple order of arrest without disclosing the purpose. For the purpose of this case it is better to unders� and that the order of arrest is only for she purpose of securing the presence of the judgement debtor.

It is already made clear that an opportunity has to be given to the judgement-debtor as to why he should not be committed to the civil prison u/s 51 C.P.C., and for this purpose a notice be issued to the judgement debtor and an enquiry may be conducted to find out whether the judgement-debtor having sufficient means to decree debt has failed or neglected to do the same and there after the lower Court shall follow the procedure as laid down by Order 21 rule 40 C.P.C. With the above direction the revision petition is dismissed, but in the circumstances without costs. It is made clear that the lower Court shall fix a date and issue the notice to the judgement-debtor to appear in the Court on that specified, date. In the event of the judgement debtor not appearing on that date it may issue a warrant of arrest.