IMPORTANT POINT
Imprisonment for non-payment of debts must comply with procedural safeguards to ensure fairness and assess the debtor's ability to pay.

ORDER :

1. This misc. petition has been preferred by the petitioner/defendant/judgment debtor (J.D.) challenging the order dated 21-11-2023 passed by 3rd Civil Judge Class-I, Tikamgarh in execution case No. 5A/22 whereby upon respondent/plaintiff/decree holder (D.H.)’s application under Order 21, Rule 37, Civil Procedure Code, executing Court has on the one hand directed the petitioner/J.D. to show cause why he should not be sent to civil prison and on the other hand, directed the respondent/D.H. to furnish details of the period for which he wants to send the petitioner/J.D. in civil prison.

2. Learned counsel for the petitioner/J.D. submits that although by the impugned order itself the petitioner has been asked to show cause why he should not be sent to civil prison but at the same time, executing Court has recorded finding in earlier part of same paragraph to the effect that petitioner/J.D. deserves to be sent to civil prison that too in the circumstances where respondent/D.H. himself has filed application with the contention that there is no property of the ownership of petitioner/J.D. and he has already transferred entire property in the name of his wife and sons. He further submits that by filing reply to the application, it was specifically contended by the petitioner that he has no property in his name and he has also not transferred any property to his wife and sons and since his business has already been closed, therefore, he is ready to deposit decreetal amount in installments, from the salary being paid to him by his employer (a private businessman), where he is doing job. He also submits that in these circumstances, no order of sending the petitioner in civil prison could have been passed that too without considering the explanation yet to be given by the petitioner in compliance of the impugned order.

3. Learned counsel for the respondent/D.H. supports the impugned order and prays for dismissal of the misc. petition.

4. Heard learned counsel for the parties and perused the impugned order as well as the record available.

5. From perusal of the impugned order, it appears that in pending execution proceedings, the respondent/D.H. has moved an application under Order 21, Rule 37, Civil Procedure Code with the prayer for sending the petitioner in civil prison. If narration of facts of the application under Order 21, Rule 37, Civil Procedure Code, is taken to be true, then it appears that petitioner/J.D. has no property and he has already transferred the entire property in the name of his wife and sons. However, no inquiry appears to have been done by executing Court as to whether on the date of filing of suit or after passing of judgment and decree dated 13-2-2020, the petitioner possessed any property or he has sold/transferred the property in the name of his wife and sons. In absence of which it cannot be said that despite having sufficient property, the petitioner does not want to pay decreetal amount.

6. As is mentioned in third paragraph of impugned order, executing Court on the one hand directed the petitioner/J.D. to show cause why he should not be sent to civil prison and on the other hand, in earlier part of same paragraph, has recorded finding to the effect that as petitioner/J.D. has no property for recovery of decreetal amount, he deserves to be sent to civil prison. From the impugned order it is also not clear that before passing order of sending the petitioner into civil prison, petitioner had ever tried to escape from his liability under the decree passed against him for recovery of money.

7. In respect to the aforesaid facts, relevant provisions of Civil Procedure Code i.e. section 51 and Order 21, Rule 37, 40 are quoted as under:

“Section 51 runs thus:

“51. Powers of Court to enforce execution - Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree:

(a) by delivery of any property specifically decreed.

(b) by attachm