Tamilnadu Merchantile Bank vs N. Poulose

M. Ramachandran, J.—Section 51 of the CPC prescribes the procedure to be followed in execution of a decree. Subject to the conditions and limitations prescribed, execution of a decree on an application made by the decree holder could be effected by delivery of property, attachment and sale, by arrest and detention to prison as well as by appointing a receiver, or in such other manner as the nature of the relief granted may require.

The submission of the petitioner, who is a scheduled bank, is that while disposing of E.P. No. 11 of 1999 in O.S. No. 6 of 1993, the Court had unnecessarily restrained itself from enforcing the decree by arrest and detention of the judgment debtor, and he had been let off. The court had held that the evidence adduced was insufficient to come to a conclusion that the second judgment debtor had sufficient means to discharge the liability and for non-payment of the decree amount, treating it as deliberate, issue of a warrant for arrest may be proper.

Mr. L. Mohanan, appearing for the petitioner, submits that the view as above was illegal and interference of this Court is warranted.

The order of the learned Sub Judge dated 16-07-2004 was in respect of an application to arrest the second judgment debtor. The decree amount was Rs. 76,838/-. On a previous occasion, an arrest warrant had been issued on 06-09-2002, and on that day he had paid Rs. 5000/- and had filed an affidavit undertaking to pay the balance amount within a month and had applied for mohsel. He was so released, but evidently had promptly broken his undertaking. When an arrest warrant again was issued, he had filed a writ petition as W.P.(C) No. 5745 of 2004 challenging the same. This Court had, at that time, directed the person concerned to appear before the court below and file objections. The court had been directed to pass orders after hearing the parties. The impugned order had been passed consequent to this development.

According; to the second judgment debtor, although he had properties, they were sold in public auction for debts due to the Kerala Financial Corporation, and he had no means at any time to pay the decree debt. He is a surety in respect of the loan availed of by his brother, the first defendant.

The learned Sub Judge had held that it was the case of the decree holder that the second judgment debtor possessed properties and had means but deliberately responsibility was avoided. However, he held that it had not been possible for them to discharge the burden to show that the judgment debtor had means to discharge the liability. No steps were also taken to show the details of properties, as possessed by him. Court held that the address of the judgment debtor, shown as Proprietor of Usha Hospital, by itself did not lead to any positive inference to wit that he was the proprietor of the hospital or there was income from the hospital, sufficient to discharge the decree debt.

Counsel submits that the approach as above could not have been considered as authorised. He refers to proviso (5) to Section 51 of the Code of Civil Procedure, and submits the when the judgment debtor has or had since the date of the decree, 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, the application of the decree holders has to be entertained. The measure of arrest was therefore eminently justified.

On the other hand, Mr. Pradeep, counsel for the respondent, points out that in the matter of arrest and detention, if the decree is for money, there is a bar for execution by detention. The court has to satisfy itself that the judgment debtor was likely to abscond or was party to dishonest transfers or concealment in respect of his property, before it can come to a conclusion that arrest is to follow. Alternatively, the court should be convinced that since the date of the decree the debtor should have means to pay the amount or substantial part thereof and had refused to pay the same.

It is evident that the burden is on the decree holder to show that the judgment debtor was resorting to unfair means for avoiding payments. Of course Sri. Mohanan states that the respondent was a doctor conducting a hospital and he had substantial means. However, nothing about his income or probable income was in evidence. Only for the reason that he was arrested once, and thereafter had been released recording undertaking about repayments, cannot be a guidance for the court to re-arrest him on a second time, when an objection is raised that he had no means for payment. That he is pursuing the profession of a doctor or that he is the proprietor of a hospital, by itself may not ipso facto lead to an inference that he has sufficient means to pay the decree debt. This is one aspect. Now, we may examined whether he was party to an indiscretion referred to the in the proviso.

The decree in favour of the petitioner had been passed in the year 1993. Documents produced before the court below indicated that he had dealings with the Kerala Financial Corporation from November, 1989, when he had availed of an loan of Rs. 50,000/-. The statement of accounts indicates that his liability was mounting up thereafter and as on 1st of January, 2003 the liability had come up to Rs. 46,30,811/-. The Kerala Financial Corporation was not giving him any respite. This definitely indicate that he had no sufficient means to pay the decree debt, as he was always in the red. His landed properties had been put to public auction in January, 2003 and had been sold away for Rs. 11,26,000/-and he still continues to be a perpetual debtor to the Kerala Financial Corporation. Therefore, it cannot be stated that he had means to pay the decree amount and had deliberately refused to pay the debts. There is nothing to show that he had other properties. This Court had held in Kuppuswamy v. P.G. Menon 1992 (2) KLT 203 that the burden of proof lies on the decree holder that the judgment debtor has sufficient realizable assets from which the funds could be raised for repayment of the debt. It has not been possible for the petitioner to discharge his burden, as above.

Consequently, we have to conclude that the court below was justified in exercising its discretion. The application was rightly rejected, and the Doctor has swam to the shores of safety.

The Civil Revision Petition is therefore dismissed.