T.S. Ranganathan vs P.R. Mohan Ram

This revision is by the judgment-debtor/ 1st respondent in R.E. P. No. 25 of 1991 on the file of Subordinate Judge, Krishnagiri. The execution

petition is for arrest of the petitioner with a view to realise the money decree obtained against him by the decree-holder-respondent herein. In the

execution petition, initially notice was ordered to the judgment-debtor and he appeared before the Court and filed his counter. Then the execution

Court passed an order of arrest inter alia stating, ""Means has been proved by affidavit. Hence the objection being untenable arrest the respondent

by 31-12-1991"".

The learned Counsel for the petitioner submits that this Court has repeatedly held that after the judgment-debtor appeared in court pursuant to

the notice of arrest, the procedure prescribed under Order 21, R. 40, C.P.C. has to be followed. In other words, in such a situation 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

But in the present case, admittedly no such procedure has been followed. The decree-holder has not let in any evidence. Nor the judgment-

debtor has let in any evidence. When an enquiry is held pursuant to O.21, Rule 40, C.P.C. the Court has to see at that stage whether the

judgment-debtor could be detained in civil prison for any of the three reasons mentioned in the proviso to S. 51, C.P.C. One of these reasons

mentioned in Cl. (o) to the said proviso is 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. No doubt, in the impugned order,

the learned Judge has observed, ""Means had been proved by affidavit"". In this connection, the learned Counsel for the respondent-decree-holder

drew my attention to the following passage in the counter-affidavit against the execution portion -

Anyhow this respondent is not able to raise funds, though he has got properties which cannot be sold or mortgaged immediately. Hence he cannot

be arrested in the execution of the decree.

The learned Counsel for the respondent submits that the abovesaid averment itself is an admission on the part of the judgment-debtor that

though he has got properties, he could not pay the decree amount since he was not able to raise funds therefrom. Further, the learned Counsel also

points out that the said affidavit was dated 13-8-1991 and the impugned order was passed only 28-11-1991 and in between, the execution

petition was adjourned more than once. The learned Counsel submits that this would show that, despite the fact that the judgment-debtor had

means to pay, he had neglected to pay the decree amount as found in the above proviso to Section 51, C.P.C.

On the other hand, the learned Counsel for the petitioner drew my attention to a decision in V. Ganesa Nadar Vs. K. Chellathai Ammal, ,

wherein it has been held, while interpreting the abovesaid Cl. (b) of the proviso to Section 51, C.P.C. that the refusal or neglect spoken to therein

envisages the capacity to pay but deliberate non-payment. I also find that unless there is deliberate nonpayment, despite the possession of

properties, no arrest order could be made. From the abovesaid passage in the counter-affidavit of the judgment-debtor or from the fact that no

payment was made even during the time-gap between the date of the said counter and the date of the impugned order; it cannot be positively

concluded that there was any such deliberate non-payment by the judgment-debtor. That apart, the Court below has not given any such finding

regarding the neglect or refusal spoken to in Sec. 51, proviso (b), C.P.C. Further Order 21, Rule 40, C.P.C. requires that opportunity should be

given to both the parties to adduce evidence in this regard. No doubt, it is not clear whether the judgment-debtor requested the court to allow him

to lead evidence. Anyway, it is not on record that opportunity was actually given to the judgment-debtor to adduce evidence in this regard. The

fact that the said procedure should be followed by the Execution Court has also been reiterated in two of my earlier decisions, Gokuldas v.

Appandevatha, 1990(1) LW 21 and Ismail v. M. Chinniah, 1990 (1) LW 155 and also Anama Gounder Vs. A.C. Ponnusami, and in Sheik

Sujaudeen Vs. T. Arumugham Chettiar, , this Court has observed,

A reference to Section 51, C.P.C., would show that it is the bounden duty of the Execution Court to satisfy itself that the judgment-debtor has, or

has had since the date of the decree, the means to pay the amount of decree or some substantial part thereof, but all the same refuses or neglects

or has refused or neglected to pay the same. Section 51 further insists that the Court''s satisfaction must be entered for good reasons which are to

be recorded in writing in the order. The provisions of Section 51 do not depend for their implementation on the attitude which the judgment-debtor

might take when notice goes to him of the execution petition. Whether or not the judgment-debtor resists the execution petition and whether or not

the judgment-debtor denies that he has means the Court cannot shirk the respon- sibility under the Code of instituting an enquiry to find out

whether the judgment-debtor has the requisite means to pay and yet wilfully refuses or neglects to pay the amount (Emphasis supported).

In the above circumstances. I think the Court below should have followed the procedure prescribed under Order 21, Rule 40, C.P.C. Since the

said procedure has not been followed, I set aside the order of the Court below and remand the matter to the Execution Court, directing it to follow

the procedure prescribed under Order 21, Rule 40, C.P.C, In other words, if the decree-holder wants to let in evidence in this regard, he shoud

be allowed to do so and thereafter, if the judgment-debtor wants to let in any evidence he should also be permitted to do so.

In the result, the civil revision petition is allowed and the impugned order is set aside and the execution petition is remanded to the Execution

Court. The Executing Court is directed to dispose of the execution petition on or before 30th April, 1992, in the light of the observations made

above. No costs.

Petition allowed.