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High Court of Judicature at Madras
N. KIRUBAKARAN, J.
K. Vaidyanathan
Versus
R. Dhanabackiam
C.R.P.(PD) No. 879 of 2014 & M.P. No. 1 of 2014
Decided on : 12-03-2014
Arrest and Detention in Civil Prison - Order 21, Rule 37 of the Civil Procedure Code - The court found that notice was given to the petitioner as required by Order 21, Rule 37 and that the court has discretion to dispense with the notice if the judgment debtor is likely to abscond or obstruct the execution of the decree. The court also found that the petitioner had means to pay the amount but refused to do so. Section 51 of the Civil Procedure Code - The court relied on Section 51(b) to support its finding that if the judgment-debtor refuses or neglects to pay the sum, then the arrest warrant can be issued. The court also relied on a previous judgment to interpret Section 51.
Fact of the Case:
The petitioner failed to pay a money decree and the respondent sought for the petitioner to be arrested and detained in civil prison. The petitioner argued that the procedures under Order 21, Rule 37 of the Civil Procedure Code were not complied with. The petitioner also relied on a previous judgment to argue that the court should satisfy itself before passing the order of detention. The court found that notice was given to the petitioner as required by Order 21, Rule 37 and that the court has discretion to dispense with the notice if the judgment debtor is likely to abscond or obstruct the execution of the decree. The court also found that the petitioner had means to pay the amount but refused to do so. The court dismissed the revision petition and closed the miscellaneous petition.
Finding of the Court:
The court analyzed the provisions of Order 21, Rule 37 and Section 51 of the Civil Procedure Code. The court found that notice was given to the petitioner as required by Order 21, Rule 37 and that the court has discretion to dispense with the notice if the judgment debtor is likely to abscond or obstruct the execution of the decree. The court also found that the petitioner had means to pay the amount but refused to do so. The court relied on a previous judgment to support its findings.
Ratio Decidendi: The court held that notice was given to the petitioner as required by Order 21, Rule 37 and that the court has discretion to dispense with the notice if the judgment debtor is likely to abscond or obstruct the execution of the decree. The court also held that the petitioner had means to pay the amount but refused to do so. The court relied on a previous judgment to support its findings.
Result: The court dismissed the revision petition and closed the miscellaneous petition.
1. The Judgment Debtor, who was slapped with an order to be arrested and detained in civil prison, is before this Court.
2. The petitioner herein suffered a money decree in O.S.No.96 of 2005 filed by the respondent, on 21.09.2007. Thereafter, the respondent filed an Execution Petition. Since the petitioner failed and neglected to pay the decree amount, in the Execution Petition, the respondent sought for arrest of the petitioner in civil prison for non-payment of decree amount. After contest, finding that the petitioner has got means, the Execution Court has passed an order to arrest the petitioner to be detained in civil prison. The said order is being challenged before this Court.
3. Heard Mr. P.Gopalan, learned counsel appearing for the petitioner, who would argue that though sufficient safeguards have been provided under Order 21, Rule 37 of Civil Procedure Code, the procedures contemplated under those provisions, have not been complied with. He would particularly point out that notice has to be issued necessarily before passing an order to arrest the Judgment-Debtor as per Order 21, Rule 37 of Civil Procedure Code. He would further submit that under Section 51 of C.P.C. the Execution Court is duty bound to give a finding that only on the particular circumstance namely, the Judgment-Debtor is trying to alienate the property or flee away from the jurisdiction the order of arrest can be passed.
4. The learned counsel for the petitioner would rely upon the Judgment of this Court in Arumugham v. Muthukumaraswami reported in [2014(1) MWN (Civil) 396] to stress the point that the Court should satisfy itself before passing the order of detention that the judgment-debtor is likely to abscond or leave local limits of jurisdiction of Courts or dishonestly transfer, conceal or remove any part of his property etc.
5. No doubt, arresting a person and detaining in prison towards discharge the civil obligation is a serious order. There is no dispute with regard to passing of money decree against the petitioner. Since the petitioner failed to pay the amount, an execution petition was filed and in the E.P., order of arrest was sought on the ground that the petitioner has got means and in spite of available of means, the petitioner is deliberately evading the payment. In the Execution Petition, notice was ordered to the petitioner. The petitioner filed counter affidavit on 17.09.2010 and in fact, the respondent examined two witnesses and the petitioner examined four witnesses and as many as seven(7) exhibits on the side of the respondents and twelve (12) exhibits on the side of the petitioner were marked. The grievance of the petitioner is that the provision under Order 21, Rule 37 has not been complied with.
6. For the sake of clarity, it is appropriate to extract the Order 21, Rule 37 of C.P.C. as follows :
37. 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.
From the above, it is clear that notice is required to be given to the judgment-debtor under Order XXI, Rule 37 of C.P.C and
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