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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

WP227 No. 94 of 2016

Prem Sagar Gabhel S/o Dhaniram Gabhel, Aged About 50

Years R/o Village Minagi Thana Jobi, District Raigarh

Chhattisgarh

---- Petitioner

Versus

1. Amrita Bai W/o Late Natthulal, Aged About 50 Years R/o

Korkoma, Tehsil & District Korba Chhattisgarh

2. Ishwar Dutt Gautam, S/o Prem Dutt Gautam, R/o Madian

Makuwa, District Datiya Madhya Pradesh, Presently R/o At

Sakti, Tahsil And P.S. Sakti, District Janjgir Champa

Chhattisgarh

---- Respondents

And

WP227 No. 95 of 2016

Prem Sagar Gabhel S/o Dhaniram Gabhel, Aged About 32

Years R/o Village Minagi Thana Jobi, District Raigarh

Chhattisgarh

---- Petitioner

Versus

1. Raj Prasad Gupta, S/o Late Mangleswar Prasad Gupta, age

32 years.

2. Ku. Padma Gupta, D/o Mangleswar Prasad Gupta, age 29

years.

3. Natthulal Gupta, S/o Phoduram Gupta, age 68 years (died)

4. Amrika Bai, W/o Late Natthulal Gupta, age 50 years

All of us resident of Korkoma, District – Korba (C.G.)

5. Ishwar Dutt Gautram, S/o Prem Dutt Gautam, aged about

unknown, R/o Madian Makuwa, District Datiya (M.P.),

presently resided at Sakti, Tahsil and P.S. Sakti, District

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Janjgir Champa (C.G.)

---- Respondents

For Petitioner

: Shri Amit Sharma, Advocate.

For Respondents : Shri H.S. Patel, Advocate.

Hon'ble Shri Justice Sanjay K. Agrawal

Order On Board

30/11/2016

(1)

The petitioner herein is a judgment-debtor before the trial

Court as he has suffered an award passed by Motor Accident

Claims Tribunal. By the impugned order dated 20.11.2015, the

said Court (M.A.C.T.), the trial Court has allowed the application

for sending the petitioner/judgment debtor to civil jail as provided

under Order 21 Rule 37 read with Rule 40 of the Code of Civil

Procedure.

(2)

Feeling aggrieved & dissatisfied with the order sending the

petitioner/judgment-debtor to Civil Jail, instant writ petition under

Article 227 of the Constitution of India has been filed. Since both

the writ petitions involved common questions of law & facts, they

are being disposed of by this common order.

(3)

Mr. Amit Sharma, learned counsel appearing for the

petitioner/judgment debtor would submit that remedy of execution

by arrest and detention being extraordinary remedy, it could not

have been granted by the trial Court/M.A.C.T. without holding the

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enquiry as contemplated under Order 21 Rule 10 CPC and,

therefore, impugned order is liable to be set aside.

(4)

On the other hand, Mr. H.S. Patel, learned counsel

appearing for the respondents/decree holder would submit that

the petitioner has attitude of not paying the award amount and

has also filed a suit for declaring him insolvent, therefore, the

decree holders have no option except to proceed under Order 21

Rule 37 of the CPC.

(5)

I have heard learned counsel appearing for the parties at

length and considered their rival submissions made therein with

utmost circumspection.

(6)

Section 51 of the Code of Civil Procedure deals with the

powers of Court to enforce execution. One of the mode for

enforcement of the execution under clause (c) of Section 51 is by

arrest and detention in prison for such period not exceeding the

period specified in Section 58, where arrest and detention is

permissible under this section. Before the Court passes an order

for detention the Court passes an order for detention the Court

has to satisfy the conditions of the proviso to Section 51 which

reads thus:

“51. Power of Court to enforce execution.- Subject of

such conditions and limitations as may be prescribed, the

Court may, on the application of the decree-

holder, order

execution of the decree-holder-

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(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by the sale without attachment

of any p