IMPORTANT POINT
Arrest of a judgment-debtor for non-payment requires evidence of bad faith or willful neglect, and other execution methods must be considered first.

ORDER :

Venkateswarlu Nimmagadda, J.

1. The Civil Revision Petition is filed aggrieved by the Order dated 11.03.2024 passed in E.P.No.19 of 2023 in O.S.No.165 of 2021 on the file of court of Principal Junior Civil Judge, Bobbili, by issuing warrant against the petitioner herein under Order XXI Rules 37, 38 and Section 55 of the Code of Civil Procedure(CPC), 1908.

2. To refer the parties herein for discussion, the petitioner herein is the defendant in the suit and Respondent herein is the plaintiff in the suit.

3. The brief averments of the plaint are that the defendant is in need of money for family expenses, approached the plaintiff and borrowed an amount of Rs.6,00,000/- from the plaintiff on 10.04.2020 and executed a suit promissory note in favour of the plaintiff on an even day and agreed to repay the same with interest 24% per annum to the plaintiff or his order on demand. Subsequently, the defendant did not pay any amount towards the discharge of the suit promissory note debt. The plaintiff demanded the defendant so many times in person and through elders, to pay the said promissory note debt, while admitting his liability has been postponing the repayment on one pretext or other. Hence, the plaintiff filed suit for the recovery of an amount. The said suit was decreed in favour of the plaintiff on 29.11.2022 for an amount of Rs.8,04,800/- together with interest @ 12 % per annum from the date of suit till the date of decree.

4. Learned counsel for the petitioner submits that the learned Trial Court passed the impugned order in a cryptic manner without taking into account of the mandatory requirements in E.P.No.19 of 2023 under Order XXI Rule 37, Rule 106 of CPC and Section 55 of CPC. The express provisions have been given a go-bye, therefore the order cannot be sustained either on facts or in law.

5. The Executing Court ought to have seen that arresting of judgmentdebtor and sending him to civil prison is a matter of touching personal liberty and hence ought to have been cautious and shall have afforded a proper opportunity and conduct a necessary enquiry before making the order directing the petitioner to undergo civil imprisonment.

6. The learned trial Court failed to assign reasons as essentially and imperatively enunciated under Section 51 of C.P.C while ordering execution by arrest and detention. Four specific factors have been delineated which have to be taken into consideration, before ordering Arrest of judgment-debtor i.e., (i) the judgment debtor is likely to abscond (ii) after the institution of the suit, he has dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or (iii) 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; or (iv) that the decree is for a sum for which the judgment debtor was bound in a fiduciary capacity to account. Therefore, from the scheme of section 51 of CPC, it is clear that when the court is satisfied that if atleast one of the conditions mentioned in clauses (a) to (c) of the proviso exists or is believed to be existing, by the Court, then only, the court would be justified in passing an order for the arrest and detention of the judgment debtor. Further, the proviso clearly states that, execution by detention in prison shall not be ordered unless, after giving judgment-debtor an opportunity of showing cause why he should not be committed to prison.

7. Learned counsel for the petitioner relied upon the ratio laid down by the Hon’ble Supreme Court in Jolly George Varghese and Another vs. The Bank of Cochin, MANU/SC/0014/1980: AIR 1980 SC 470: 1980 (2) SCC 360.

8. Learned counsel for the petitioner also relied upon the ratio laid down by this Court in SasanapuriSomeswara Rao vs. Shriram City Union finance Ltd. And others, MANU/AP/0215/2022: 2022(3) A