NAFR HIGH COURT OF CHHATTISGARH, BILASPUR WP227 No. 608 of 2021 • Sajan Kumar Sharma S/o Dulichand Sharma Aged About 57 Years R/o Kotara Road, Raigarh (C.G.), Taluka Raigarh, District Raigarh Chhattisgarh ---- Petitioner Versus • Presiding Oicer Chhattisgarh State Civil Supplies Corporation Ltd. Taluka Raigarh, District Raigarh Chhattisgarh ----Respondent CAUSE TITLE TAKEN FROM CIS PERIPHERY …………………………………………………………………………………………..

For Petitioner Mr. Prem Shankar Yadav, Advocate appears on behalf of Mr. Priyank Rathi, Advocate For Respondent Mr. Imam Siddiqui, Advocate appears on behalf of Mr. Syed Majid Ali, Advocate …………………………………………………………………………………………..

Hon'ble Shri Justice Deepak Kumar Tiwari

Order On Board

05.07.2024

1. This petition has been iled under Article 227 of the Constitution of India challenging the order dated 07.03.2020 passed in Civil Execution Case No.76/2013 by the 7^th Additional District Judge, Raigarh, whereby, execution of the decree dated 22.09.2012 passed by the Arbitrator cum Managing Director Chhattisgarh State Civil Supplies Corporation limited and sending the petitioner to civil jail for a period of 1 month, have been directed.

2. Learned counsel for the petitioner submits that before passing the impugned order, learned Executing Court has not followed the proper procedure to examine whether the judgment-debtor has suicient means to pay the amount of decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same. He would further submit that without such enquiry, the impugned order is not proper. Further, there is no material to show that after the decree, the judgment-debtor, in any manner, has malaidely alienated the properties owned by him. Therefore, he prays to allow the petition and set aside the impugned order.

3. On the other hand, learned counsel for the decree-holder/respondent would support the impugned order.

4. In the scheme of the Code of Civil Procedure, for execution of the decree for payment of money, proviso to Section 51 speciically stipulates that such an order shall not be passed unless, after giving the judgment-debtor an opportunity of showing cause and the Executing Court is satisied that the judgment-debtor, with the object or efect of obstructing or delaying the execution of decree is likely to abscond or leave the local limits of the jurisdiction of the Court, or has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or remove any part of his property and he has the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same and the relevant provision read thus:-

“51. Powers of Court to enforce execution.— ……………Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment- debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisied—

(a) that the judgment-debtor, with the object or efect of obstructing or delaying the execution of the decree,—

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or (c) that the decree is for a sum for which the judgment-debtor was bound in a iduciary capacity to account.

Explanation. —In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom hav