JUDGMENT

KRISHNA IYER, J. :—This litigation has secured special leave from us because it involves a profound issue of constitutional and international law and offers a challenge to the nascent champions of human rights in India whose politicised preoccupation has forsaken the civil debtor whose personal libraty is imperilled by the judicial process itself, thanks to Section 51 (Proviso) and Order 21, Rule 37, Civil Procedure Code. Here is an appeal by judgment-debtors - the appellants - whose personal freedom is in peril because a court warrant for arrest and detention in the civil prison is chasing them for non-payment of an amount due to a bank - the respondent, which has ripened into a decree and has not yet been discharged. Is such deprivation of liberty illegal?

2. From the perspective of international law the question posed is whether it is right to enforce a contractual liability by imprisoning a debtor in the teeth of Article 11 of the International Covenant on Civil and Political Rights. The Article reads:

No one shall be imprisoned mearely on the ground of inability to fulfill a contractual obligation. (Emphasis added) An apercu of Art. 21 of the Constitution suggests the question whether it is fair procedure to deprive a person of his personal liberty merely because he has not discharged his contractual liability in the face of the constitutional protection of life and liberty as expounded and expanded by a chain of rulings of this Court beginning with Maneka Gandhis case. (1978) 1 SCC 248. Article 21 reads :

21. Protection of life and personal liberty. - No person shall be deprived of his life or personal liberty except according to procedure established by law.

A third, thought humdrum, question is as to whether, in this case, Section 51 has been complied with in its enlightened signification. This turns on the humane meaning of the provision.

3. Some minimal facts may bear a brief narration sufficient to bring out the two problems we have indicated, although we must candidly state that the special Leave petition is innocent of these two issues and the arguments at the bar have avoided virgin adventures. Even so, the points have been raised and counsel have helped with their submissions. We, therefore proceed to decide.

4. The facts. The judgment-debtors (appellants) suffered a decree against them in O.S. No. 57 of 1972 in a sum of Rs.2.5 lakhs, the respondent-bank being the decree-holder. There are two other money decrees against the appellants (in O. S. 92 of 1972 and 94 of 1974), the total sum payable by them being over Rs.7 lakhs. In execution of the decree in question (O. S. 57 of 1972) a warrant for arrest and detention in the civil prison was issued to the appellants under Section 51 and Order 21, R.37 of the Civil Procedure Code on 22-6-1979. Earlier, there had been a similar warrant for arrest in execution of the same decree. Besides this process, the decree-holders had proceeded against the properties of the judgment-debtors and in consequence, all their immovable properties had been attached for the purpose of sale in discharge of the decree debts. It is averred that the execution court has also appointed a Receiver for the management of the properties under attachment. In short, the enjoyment or even the power to alienate the properties by the judgment-debtors has been forbidden by the court direction keeping them under attachment and appointing a Receiver to manage them. Nevertheless, the court has issued a warrant for arrest because, on an earlier occasion, a similar warrant had been already issued. The High Court in a short order, has summarily dismissed the revision filed by the judgment-debtor against the order of arrest. We see no investigation having been made by the executing court regarding the current ability of the judgment-debtors to clear off the debts or their mala fide refusal, if any, to discharge the debts. The question is whether under such circumstances the personal freedom of the judgme