The judgment-debtor must prove 'no means' to pay the decree amount since the date of decree to avoid arrest, fulfilling conditions of utmost good faith and full disclosure of assets.

ORDER

A decree for recovery of money was put in execution, wherein the judgment-debtor sought protection against issuance of warrant of arrest on the ground of 'no means'. It was rejected by the trial court and consequently, issued warrant of arrest under Rule 38 of Order XXI C.P.C.. It is against the said order, the judgment-debtor came up in C.R.P.No.211/2021.

2. C.R.P.No.418 of 2019 is against the order passed on an application submitted under Order XXI Rule 41 C.P.C. by the decree holder for executing the decree by arrest and detention of the judgment-debtor. It was allowed by the trial court by issuing arrest warrant.

3. The principle of 'no means' in fact is the derivative effective of clause (b) attached to the proviso to Section 51 C.P.C.. It is by virtue of the said proviso, certain exceptions were carved out against the execution of the decree for money by arrest and detention of judgment-debtor in prison. A mandate of issuance of show cause notice to the judgment-debtor why he should not be committed to prison is incorporated under the proviso as a condition precedent so as to execute the decree for money by issuance of warrant of arrest against the judgment-debtor with the grounds under which exemption from arrest can be granted and enumerated in clauses (a) to (c) attached to the proviso to C.P.C., wherein clause (b)

says that :

“(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.”

(emphasis supplied)

4. A mere reading of the abovesaid clause would show that the burden lies on the judgment-debtor to get exemption from arrest and detention is so extensive and it would operate from the date of decree onwards. It is discernible by the user of the expression “since the date of the decree” incorporated, which casts a liability on him to prove and establish 'no means' to pay the amount of decree or any substantial portion thereof right from the date of decree and not from the date on which the decree was put in execution or from the date on which an enquiry was commenced by issuing show cause notice under Rule 37 of Order 21 C.P.C.. The principle embodied under the proviso to Section 51 C.P.C. especially clause (a) and (b) to the proviso is resting on the principle of “utmost good faith”, free from malafides and the person who claims the benefit should come with clean hands free from any non- disclosure or concealment of any property or assets or income whatsoever pertaining to that person. The derivative effect of clause (b) of proviso attached to C.P.C. casts a duty on the person who claims it, firstly to establish “utmost good faith” and bonafides that he has no means to pay the decree amount either in whole or in part right from the date of decree. Necessarily, a subsequent development or change of financial status of the judgment-debtor having the effect of making him incapable of raising funds to meet the amount decreed or a substantial portion thereof after the passing of the decree may not have any relevance so as to determine “means to pay” as incorporated under the said clause. Necessarily, a subsequent change in the financial status of the judgment-debtor after the decree will not relieve him from the liability to answer the decree amount and he cannot escape from the mischief of warrant of arrest, unless it is due to the effect of unexpected developments beyond his control, which may be an exemption to the general principle though it was not contemplated under the abovesaid rule or the proviso attached thereof. The principle that no one shall be incarcerated in civil prison, for the unexpected default or laches beyond his control, is well recognized, resting on sound principles of natural justice besides the protection under Article 21 of the Constitution. It was applied by this court early in the year 1969 inXavier v. Canara Bank Ltd ( 1969 KLT 9