Distinction between order of arrest and order of detention.

ORDER :- Manokaran, the petitioner herein, is the judgment-debtor.

2. The respondent/plaintiff filed a suit in O.S. No. 159 of 1997 against the petitioner/defendant and obtained a money decree on 12-12-2000 for Rs. 74,576.25. No appeal was filed by the petitioner/defendant against the said money decree. So, the respondent/plaintiff filed a petition in E.P. No. 45 of 2001 under Order 21, Rule 11(2) , C.P.C. on 12-3-2001 praying for the arrest of the petitioner/judgment debtor under Sections 51 and 55, C.P.C. for the execution of the said decree. The matter came up for final disposal on 3-7-2001. On the date, the petitioner/defendant as well his counsel was absent. Though the counsel entered appearance earlier, no counter was filed till then. Therefore, an order of arrest was passed in the said application on 3-7-2001. Challenging the same, the petitioner/defendant has filed this Civil Revision Petition.

3. I heard the learned counsel for the petitioner and the respondent.

4. The counsel for the petitioner on the strength of the decisions in (1) Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470; (2) P. Azeez Ahmed v. State Bank of India, AIR 1995 Madras 194; (3) Muthuswamy M. v. Supasri Chit Funds, 2000 (2) CTC 168; and K. Al Rm. Rm. Alagappan v. Rajaguru and Co. (AIR 1985 Madras 453) would strenuously contend that the order of arrest was made without following procedure as contemplated under Section 51, C.P.C. and Order 21, Rule 37, C.P.C.

5. According to the learned counsel for the petitioner, the petitioner should have been given opportunity by calling upon him to show cause as to why he should not be committed to civil prison and in the absence of the said opportunity, the order of arrest is illegal.

6. In this context, it would be relevant to refer to the observation made by the Supreme Court in the decision in Jolly George Varghese v. Bank of Cochin (AIR 1980 SC 470) (supra), which is as follows (para 11):-

"The simple default to discharge the decree is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal as demand verging on dishonest disowing of the obligation under the decree."

7. The above observation made by the Apex Court has been incorporated and followed in other decisions also.

8. The reading of the relevant provisions and the above observation of the Supreme Court would show that if there is a material to show that the judgment-debtor is a person who is having funds and is evading payment of the decree amount and there is a view of bad faith in the mind of the judgment debtor and he was deliberately attempting not to pay the decree amount, then the Court has power to issue the order of arrest.

9. In this case, admittedly, the decree was passed on 12-12-2000. The judgment debtor did not choose to file an appeal. The execution petition has been filed on 12-3-2001 and notice was issued to the judgment-debtor. On his behalf, an advocate also entered appearance. Ultimately, the matter was taken up for final disposal on 3-7-2001. Till then, no counter was filed. Even on the said date, neither the petitioner/judgment-debtor nor his counsel was present before the Court.

10. In that context, the trial Court issued the order of arrest on having satisfied with the means of the judgment-debtor as contained in the affidavit regarding the availability of funds with the judgment-debtor.

11. But, it is seen from the conduct of the petitioner that he is not only avoiding payment, but also evading his presence before the lower Court.

12. As a matter of fact, while ordering notice of motion in the Civil Revision Petition, this Court on 30-7-2001 directed the petitioner to deposit 1/3rd of the E. P. amount within four weeks from the said date. It is the specific stand tak