Vikram J. Tanna vs The Chancellor, Masters & Scholars

The appellants in these appeals are brothers, Vikram, Yogesh and Mayur. On 16th May, 2006 on instructions from the defendants, that is Vikram, Yogesh and Mayur a statement was made on their behalf before the Court that they would pay Rs.32,00,000/- in instalments. The Court then directed them to pay a sum of Rs.10,00,000/- within six weeks from the date of the order and to pay the balance amount of Rs.22,00,000/- in 24 equal monthly instalments. On 15th February, 2007 the earlier order was modified by directing that in the case of default in making payment of the aforesaid amounts, the plaintiff would be entitled to put the order dated 16th May, 2006 in execution by treating it as a decree of the Court.

Indisputably the appellants failed to comply with the order dated 16th May, 2006 and therefore, the decree was put into execution. Each of the appellants was served notices regarding the execution application. However, none of them complied with the decree. Orders directing them to file affidavits of assets were also flouted. Ultimately, by an order dated 2nd July, 2010, the executing Court noted that while Yogesh and Vikram had filed the affidavits of assets. Mayur had consistently refused to comply with the order. The judgment debtors Yogesh and Vikram were directed to be present in Court to be examined as to how the decretal debt would be discharged. Since Mayur had not filed his affidavit of assets, a warrant of arrest was issued against him and made returnable in three weeks.

On 6th August, 2008 the Court noted that the warrant of arrest had not been executed against Mayur and therefore, extended the returnable date by a fortnight. The deposition of Yogesh was recorded on that day. Vikram was also examined regarding his ability to discharge the debt. A special Officer was appointed to ascertain the assets in the godown of the judgment debtors which had been shifted to Khidirpore.

On 20th August, 2010 the Special Officer was appointed as a Receiver and was directed to take symbolic possession of the assets of the partnership firm run by the three brothers Mayur, Yogesh and Vikram. Again Mayur was not traceable and therefore, the returnable date was extended.

On 3rd September, 2010 the returnable date of the warrant of arrest was extended as Mayur had not been asserted.

Several orders were passed by the Executing Court giving ample opportunity to the appellants to pay off the decretal debt. However, because of their recalcitrant attitude an order was passed on 15th December, 2016, noting that although Yogesh and Vikram were represented in Court, the key judgment debtor Mayur was not present, nor was he represented. A warrant of arrest was issued against him. The Court also recorded that all the judgment debtors had been examined.

Thereafter, on 29th January, 2017 the impugned order was passed by the Executing Court recording that it was clear that the judgment debtors had tried to mislead the Court by expressing that they had meagre earnings and were not in a position to discharge the debt, notwithstanding the assurance given by them to repay the amount of Rs.32,00,000/-. The Court found that such representation was not genuine and in these circumstances, directed that the judgment debtors should be detained in civil prison for a period of 30 days.

The learned Counsel appearing for Vikram contends that he had no knowledge of the transactions of his brothers with the decree holder. He was a young man of 23 years of age, prosecuting his studies and therefore, had nothing to do with the partnership concern. The learned Counsel submits that since Vikram was earning a salary of Rs.6,000/-, a part of the amount could be attached in terms of the provisions of the Civil Procedure Code. The learned Counsel urges that the Executing Court had not considered whether Vikram had any means to pay the decretal debt before committing him to civil prison.

The learned Counsel appearing for Yogesh and Mayur submits that no warrant of arrest could be issued without complying with the provisions of Order 21 Rule 37 of the Civil Procedure Code. He relies on the judgment of the Supreme Court in the case of Jolly George, Varghese and Anr. Vs. The Bank of Cochin reported in AIR 1980 SC 470.

We are not convinced by the arguments advanced on behalf of the appellants. Vikram was not a minor when the decree was passed. He took no steps either to complain that he was not aware of the decree or that he was not bound by what his brothers have stated on his behalf when the decree was passed. Vikram did not appeal against the decree and therefore, the submissions of the learned Counsel appearing for him are without merit.

The submission of the learned Counsel for Yogesh and Mayur that Order 21 Rule 37 has not been complied is unsustainable. Ample opportunities were given to each of the judgment debtors to appear before the Court and file the affidavits of assets. Mayur was absconding for several months till he was traced at a new address. He has also been examined before the Court, just as Yogesh and Vikram. Several documents were filed on record before the Executing Court indicating the manner in which the debt could be discharged. Therefore, to suggest that a further notice ought to have been issued against the appellants before any arrest could have been made, is, in our opinion without merit.

The indulgence shown to the appellants by the Court for discharging the decretal debt has been misused by them. The documents filed on record indicate that they are capable of discharging the debt despite which they have refused to do so. Therefore, a discretionary order, committing them to civil prison has been passed by their Executing Court which in our opinion, is not required to be interfered with.

The appeal is dismissed.

Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.