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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P.D. DINAKARAN
M. Muthuswamy
Versus
Supasri Chit Funds, Coimbatore and another
C.R.P.No.2866 of 1994
Decided On : 04-09-1998
EXECUTION OF DECREE - ARREST AND DETENTION OF JUDGMENT DEBTOR - ORDER 21, RULES 37, 39 AND 40, C.P.C. - COURT'S DISCRETIONARY POWER TO PERMIT JUDGMENT DEBTOR TO SHOW CAUSE AGAINST DETENTION IN PRISON - SUBSISTENCE ALLOWANCE TO BE PAID BY DECREE-HOLDER - PROCEDURE TO BE FOLLOWED BY EXECUTION COURT - INTERPRETATION AND APPLICATION.
Fact of the Case:
The revision petition challenged an order of arrest issued by the Execution Court against the revision petitioner/judgment debtor for non-payment of a decree amount. The petitioner contended that the Execution Court failed to conduct an enquiry and comply with the procedure prescribed under Order 21, Rules 37, 39, and 40 of the Code of Civil Procedure (CPC) before ordering the arrest.
Finding of the Court:
The High Court held that the Execution Court erred in ordering the arrest of the revision petitioner without conducting an enquiry under Order 21, Rule 39, and complying with the procedure contemplated under Order 21, Rules 39 and 40 of the CPC. The Court observed that the Execution Court is required to determine the amount of subsistence allowance to be paid by the decree-holder for arrest and production of the judgment debtor before issuing an arrest warrant.
Issues: 1. Whether the Execution Court conducted an enquiry under Order 21, Rule 39, and complied with the procedure prescribed under Order 21, Rules 39 and 40 of the CPC before ordering the arrest of the revision petitioner? 2. Whether the Execution Court was justified in ordering the arrest of the revision petitioner without determining his current means to discharge the decree?
Ratio Decidendi: The Court relied on the following legal principles: 1. Order 21, Rule 37 of the CPC empowers the Court to issue a notice to the judgment debtor to appear before the Court and show cause why he should not be committed to civil prison for non-payment of a decree amount. 2. Order 21, Rule 39 of the CPC requires the decree-holder to pay into Court a sum sufficient for the subsistence of the judgment debtor from the time of his arrest until he can be brought before the Court and for the payment of conveyance charges. 3. Order 21, Rule 40 of the CPC provides for the procedure to be followed by the Execution Court when the judgment debtor appears before the Court in obedience to a notice or after arrest. 4. The Execution Court is required to conduct an enquiry to determine whether the judgment debtor has the means to pay the decree amount or a substantial part thereof, but wilfully refuses or neglects to pay the same. 5. The Execution Court cannot rely solely on the pleadings of the judgment debtor to determine his means to pay the decree amount.
Final Decision: The High Court set aside the order of arrest issued by the Execution Court and recorded the undertaking of the revision petitioner that he would pay a sum of Rs. 1,000 per month towards the decretal amount. The Court directed that in the event of any default for three consecutive months, it would be open for the respondents/decree holders to take appropriate execution proceedings afresh.
1. Heard.
2. The above revision is directed against the order dated 28. 1994 in E.P. No. 205 of 1993 in Arbitration Case No.81 of 1993, on the file of the learned Second Additional Subordinate Judge, Coimbatore, arresting the revision petitioner, which reads as follows :
" Payment not effect today. Heard both sides. Perused the affidavit, petition, affidavit and the counter and there is sufficient grounds. Arrest by 30.9.1994.
3. Ms. Asha, learned counsel for the revision petitioner, invited my attention to Order 21, Rule 31, 37, 39 and 40.
4. According to Ms. Asha, the learned counsel for the revision petitioner, a reading of Order 21, Rule 31, 37, 39 and 40 would show that the Execution Court is under a duty to hold an enquiry and to give a finding as to the current means of the judgment debtor to discharge the decree before the order of arrest under Order 21, Rule 37. In this regard, she relies upon the decision in Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470 and Anama Gounder v. A.C. Ponnusami, AIR 1982 Mad. 81.
5. The learned counsel for the revision petitioner further contends that Order 21, Rule 39 presupposes that the Execution Court is bound to determine the substance alone as a condition precedent before issuance of arrest warrant gains the revision petitioner/judgment debtor herein. In this regard, she relies upon the decision in Srinivas G. Shet v. Manipal Finance Corporation Ltd., 1998 BC 210.
6. In the light of the above well-settled proposition, Ms. Asha, learned counsel for the revision petitioner, contends that the order dated 28. 1994 made in E.P. No. 205 of 1993 in Arbitration Case No.81 of 1993, is liable to be set aside, as the Execution Court neither conducted an enquiry, nor discharged its statutory obligation contemplated under Order 21, Rule 37,39 and 40, C.P.C. referred to above.
7. Alternatively, the learned counsel for the revision petitioner also invited my attention to the undertaking of the revision petitioner himself that he would pay a sum of Rs. 1,000 per month towards the decretal amount, and contends that the Execution Court erred in rejecting such request of the revision petitioner in ordering the arrest. In any event, the learned counsel for the revision petitioner states that the revision petitioner/judgment-debtor is still prepared to discharge the decretal amount by paying Rs. 1,000 per month.
8. Mr. A.S. Vijayaraghvan, learned counsel for the respondent/decree holder contends that the above revision is not against the order of refusing to accepted the request of the revision petitioner/judgment debtor to pay a sum of Rs. 1,000 per month, but, it is against the order of arrest.
9. Mr.A.S. Vijayaraghavan, learned counsel for the respondents, contends that the Court was constrained to pass an order of arrest only as the revision petitioner ultimately failed to discharge the liability.
10. I have given a careful consideration to the submissions of both sides.
11. In this regard I am obliged to refer Order 21, Rule 37, 39 and 40, C.P.C., which read as follows:
Order 21, Rule 37: " Discretationary power to permit judgment-debtor to show case against detention in prison.—
.(i) 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 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
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