Headnote:CIVIL PROCEDURE CODE, Or21, Rule 37 & Sec50 - DHr filed EP seeking arrest of principal debtor and other guarantors in bid to realize decretal amount - Executing Court ordering arrest of petitioner /2nd JDR / guarantor observing that petitioner is owning house and has sufficient means to pay amount and not denied same in cross-examination which amounts to admission on his part
       Contention that DHR has chosen to proceed against petitioner alone, though he is retired person, having no means to pay with a view to harass, leaving out other JDRs including principal borrower who has got sufficient means to pay decretal amount and therefore ordering arrest is un-warranted
       In this case, petitioner/2nd JDR sufficiently denied both in his counter and in his evidence of having any means to pay decree debt and his plea from beginning that he is retired person having no property and no income and is afflicted with ailments - Impugned order of executing Court suffers from legal infirmity as it seeks to presume existence of means on part of petitioner and throws burden on him to disprove same, which is contra to intendment of Sec51 CPC
       Decree holder has to establish to satisfaction of Court that petitioner/JDR has means to pay decree amount and is refusing or neglecting to pay same - Impugned order, set aside - CRP, allowed

Judgement Key Points

Key Points: - The decree-holder must establish to the satisfaction of the court that the judgment-debtor has means to pay and is refusing or neglecting to pay (!) . - The impugned order was set aside for presuming means and placing burden on the debtor to disprove without adequate evidence (!) . - The court emphasized that evidence must show the debtor owns means or property; mere allegation without documentary/overt evidence is insufficient (!) . - It is permissible for decree-holders to proceed against any judgment-debtor, including guarantors, but not to rely on unsubstantiated assertions about a debtor’s means (!) . - The decision affirmed that arrest/detention in prison as a mode of execution requires written reasons and proof of means since the decree is for money (!) . - The revision petition succeeded, and the impugned order arresting the 2nd judgment-debtor was unsustainable (!) . - The Civil Revision Petition was allowed, setting aside the order of arrest; no order as to costs (!) .

What is the correct approach under Section 51 CPC for arresting a judgment debtor when the decree is for money and the debtor claims no means to pay?

What constitutes sufficient proof of "means to pay" to justify arrest of a judgment debtor under Order 21 Rule 37 CPC and Section 51 CPC?

What are the consequences of proceeding against a single guarantor when other liable debtors exist, and is it permissible to arrest only one guarantor?

ORDER

This Civil Revision Petition is filed against the order dated 26-7-2005 in E.P. NO.27 of 2004 in O.S. No. 276 of 1997 on the file of II Additional Senior Civil Judge at Vijayawada, wherein the warrant of arrest was ordered against the revision petitioner-2nd judgment debtor. "

2. Heard the counsel for the revision petitioner. None appeared for the 1st respondent/decree-holder though served with the notice.

3. The first respondent/decree-holder filed the suit O.S. No.276 of 1997 and the same was decreed for an amount of Rs. 62,069/- and interest and costs. The 1st respondent filed E.P. No. 27 of 2004 for realization of total amount of Rs. 1 ,22,647/- under the decree. The revision petitioner/2nd judgment-debtor is one of the guarantors for the suit transaction for 2nd respondent herein, who was the principal borrower. The execution petition was filed seeking arrest of the principal debtor and guarantors under Order 21 Rule 37 CPC in a bid to realize the decretal amount. The revision petitioner/2nd judgment-debtor filed a counter before the execution court pleading that he has retired from seine and has been suffering with several ailments and he has no means to pay the decretal amount. He further pleaded that the principal borrower/1st judgment-debtor has got properties and the other judgment debtors who are also guarantors are in service, but however, the decree-holder is proceeding against the revision petitioner alone, which is borne out by the evidence of P.W.1, B:-Chandrasekhar, who deposed that he is proceeding against one of the guarantors i.e., 2nd judgment-debtor. He also admitted that the 2nd judgment-debtor retired from service and other judgment-debtors are in service. It is suggested to P.W.1 in the cross-examination that the 2nd judgment-debtor has no means to pay the decretal amount. P.W.1, however, denied the suggestion. The Revision petitioner/ 2nd judgment-debtor also deposed as R.W.1 that he retired from service and due to wealth, he is unable to move from place to place and the other judgment-debtors are in service and 1st judgment-debtor has also got moveable and immoveable properties, but intentionally the decree-holder is harassing 2nd judgment-debtor by filing execution petition against him alone. He further deposed categorically that he has no means to pay the decretal amount. In the cross-examination, R.W.1 reiterated that he has no immoveable property. He also denied the suggestion made on behalf of the decree-holder that he has got sufficient means to pay the decretal amount. The execution court ordered the arrest of the revision petitioner/2nd judgment-debtor by observing that 2nd judgment-debtor is owning a house bearing Door No.10-45, Ramakrishnapuram of Guntupalli village and he has got sufficient means to pay the amount as can be seen from the evidence of P.W. 1, but the 2nd judgment-debtor has not denied the same in the cross-examination, which amounts to an admission on his part.

4. Learned counsel for the revision petitioner contended that the decree-holder has chosen to proceed against the 2nd judgment debtor alone, though he is a retired person, having no means to pay with a view to harass, leaving out the other judgment-debtors including the principal borrower, who has got sufficient means to pay the decretal amount. The said contention as rightly observed by the learned Senior Civil Judge is untenable, as the decree-holder has got every liberty to proceed against any of the judgment-debtors, who are equally liable for discharge of the decree debt~ and that he is evading to pay the same and therefore, ordering his arrest is unwarranted.

5. Order 21 CPC contemplates the execution of the decree by ordering arrest of the judgment-debtor. Section 51 CPC lays down that the Court may on the application of the decree-holder, order execution of the decree - inter alia by ordering arrest and detention in prison, where the arrest and detention is permissible. The proviso to Section 51 CPC states th

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