Mandatory requirement of issuing a show cause notice under Order 21 Rule 37 CPC and the need to establish the judgment debtor's likelihood to abscond to warrant detention in prison.

JUDGMENT :

SANJEEV SACHDEVA, J.

1. Petitioner impugns order dated 06.07.2018 whereby the Executing Court has sentenced the petitioner to undergo simple imprisonment for a period of 30 days because the execution has remained unsatisfied for more than 4 years.

2. Learned counsel for the petitioner submits that the Executing Court has erred in not appreciating the judgment of the Supreme Court in Jolly George Verghese Vs. The Bank of Cochin, (1980) 2 SCC 360.

3. Learned counsel further submits that an Order 21 Rule 37 CPC has no application in the facts and of the present case as there is prayer of the decree holder for execution of the decree for the arrest and detention in the present case.

4. Learned counsel further submits that the impugned order was passed on an application under Section 55 CPC. He further contends that prior to exercise of any power under Order 21 Rule 37 CPC, it is mandatory to issue a show cause notice calling upon the judgment debtor to show cause as to why he should be committed to civil prison.

5. Learned counsel submits that no such show cause notice was issued prior to the passing of the impugned order. He further submits that no finding as required by the proviso to Order 21 Rule 37 was also recorded.

6. Learned counsel appearing for the respondent/decree holder submits that the petitioner has concealed several assets and bank accounts as such an application under Section 55 CPC was moved seeking his arrest and detention.

7. Rule 37 Order 21 CPC reads as under:

"Discretionary power to permit judgment debtor to show cause against detention in prison

(1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison :

Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.

(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree- holder so requires, issue a warrant for the arrest of the judgment-debtor."

8. Order 21 Rule 37 CPC makes it obligatory on the part of the Executing Court to issue a show cause notice calling upon the judgment debtor to show cause as to why he should not be committed to the civil prison instead of issuing a warrants. The proviso under Rule 37 stipulates that where the Executing Court is satisfied that with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court, a notice would not be necessary.

9. Perusal of the impugned order shows that neither a show cause notice was issued in terms of Order 21 Rule 37 CPC nor satisfaction recorded by the Executing Court that with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court. Accordingly, on that ground alone, the impugned order cannot be sustained.

10. The Supreme Court of India in Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360 has held that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of daridra narayana, is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing cl