Thavasiappa Gounder vs A. C. Narayanaswamy

M.N. Chandurkar, C.J.—This revision petition by the Judgment-debtor is directed against an order of the Principal District Munsif,

Coimbatore by which he summarily directed the Judgment-debtor to be arrested. Undoubtedly, there is an execution proceeding which had been

initiated by the decree-holder for recovery of a total amount of Rs. 3,118 and costs of Rs. 451.10. The decree is also quite old, having been

passed in 1973. It appears that at one stage the judgment-debtor sought the benefit of Tamil Nadu Act 13 of 1980, but his application for

abatement of the execution proceedings in view of S. 4 of Act 13 of 1980 came to be dismissed. On 23rd December, 1980 the decree-holder

filed an application for execution and sought an order of arrest of the judgment-debtor under O. 21, R. 37 read with S. 55 of the Code of Civil

Procedure. The execution application merely stated that the judgment-debtor should be arrested under O.21. R. 37 read with S. 55 of the Code

of Civil Procedure. On this application the Principal District Munsif made an order that since the application for abatement of the execution petition

under S. 4 of Act 13 of 1980 was dismissed, the judgment-debtor ""be and are hereby ordered to be arrested"". This order suffers from very

serious infirmities in as much as it discloses a total non-application of mind to the provisions of Ss. 51 and 55 and O.21, Rr. 37, 39 and 40, of the

Code Civil Procedure. S. 51 of the CPC which deals with procedure in execution, in the proviso thereto, clearly lays down 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 person, the court, for reasons recorded in writing, is satisfied about the circumstances specified

in the proviso. Under Cl. (a) in the proviso, the court has to be satisfied that the judgment-debtor with the object or effect of obstructing or

delaying the execution of the decree is either likely to abscond or leave the local limits of the jurisdiction of the court, or 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. If these conditions are shown to exist, then the Court''s power to order that the Judgment-debtor should be

committed to prison can be exercised. Such power can also be exercised if 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 as

provided by Cl. (b) of the proviso in S. 51 or if the decree is for a sum for which the Judgment-debtor was found in a fiduciary capacity to account

as provided in Cl. (c) of the said proviso. There is an Explanation to the proviso to S. 51 which lays down that in the calculation of the means of

the Judgment debtor for the purpose of Cl. (b) 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 is to be left out of account. A detailed procedure as to the nature of the enquiry which

the executing court has to make is specified under O.21, Rr. 37, 38, 39 and 40. The amendment made by the Madras High Court under O. 21, R.

39(1) shows that no judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder pays into court such sum as the

judge thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the court and for the

payment of charges of conveyance of the Judgment-debtor and of the a min or process-server who executes the warrant of arrest by bus, train or

otherwise whichever is available from the place of arrest to the Court-house. Sub-R. (2) of R. 39 also provides that the court has to fix for the

subsistence of the judgment-debtor when he is committed to civil prison in execution of a decree and such subsistence amount is a monthly

allowance to which he may be entitled according to the scales fixed under S. 57, or, where no such scales have been fixed, the court has to decide

upon the monthly allowance at an amount which it considers sufficient with reference to the class to which the judgment-debtor belongs. To say the

least, the order made by the learned Principal District Munsif is in callous disregard of the statutory provisions which have been made in the CPC

regulating the power of the executing court to order arrest of the judgment-debtor.

Accordingly, the order of the learned Principal District Munsif dated 23rd June, 1984 directing the judgment-debtor to be arrested is set aside

and the execution petition stands rejected. Since there is no appearance on behalf of the decree-holder, there will be no order as to costs.