Bom HC:Orders directing party to be detained in civil prison are not to be lightly passed

Granted that some deterrent action needed to be taken,
but directing detention of the respondents for a period of 90
days in civil prison, was highly disproportionate. Orders
directing party to be detained in civil prison are not to be
lightly passed. It is true that majesty of law needs to be
upheld, but such whimsical and arbitrary orders tend to lower
the majesty of law.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 108 OF 2014
Shri Anant Gopinath Kessarkar

Versus
Shri Teodoro Jacob Fernandes,

Coram:- N. M. JAMDAR, J.
Date:- 18 February 2015
Citation; 2016(2) ALLMR278

 Rule. Rule made returnable forthwith. Respondents
waive service. Taken up for hearing.
2. By this petition, the petitioner challenges the order
passed by the Adhoc District Judge, South Goa, Margao dated
7 February 2013 allowing the Misc. Appeal filed by the
respondents against the order passed by the Civil Judge, Senior
Division, Margao directing that the respondents be detained in
civil prison for 90 days.
3. The petitioner had filed execution application in the
Court of Civil Judge, Senior Division, Margao against the
respondents for recovery of Rs.5,62,750/-. In the execution
proceedings an application was filed by the petitioner under
Order XXI Rule 41(3) of Civil Procedure Code, seeking a
direction to the respondents to file their affidavit of assets.
This application was allowed by the learned Civil Judge on the
same day. Thereafter, the execution application came up on
board before the learned Civil Judge wherein the learned Civil
Judge observed that inspite of opportunities given, the
respondents had not filed their affidavit of assets and therefore
they were guilty of disobedience of the order. Thereafter, the
advocate for the respondents appeared and stated that the
affidavit of assets has been filed. The learned Civil Judge held3 WP No.108 of 2014
that, since the respondents had not filed affidavit of assets in
time, they are engaged in dilatory practice and, accordingly,
directed that they should be detained in civil prison for 90
days.
4. Respondents thereafter filed an Misc. Appeal in the Court
of District Judge, South Goa, Margao. The learned District
Judge considered the objections raised by the petitioner as
regard maintainability of the appeal and held that the appeal
was maintainable. The learned District Judge also held that
having filed affidavit of assets the order directing that
respondents be detained in civil prison was not necessary to be
passed and allowed the appeal by the impugned order dated 7
December 2013.
5. I have heard Mr. S. Mahambrey, the learned Counsel for
the petitioner and Mr. V. Rodrigues, the learned Counsel for
the respondents.
6. First contention is that the appeal was not maintainable,
since as per Section 104(1)(h) of the Code only those orders
directing arrest other than the one in execution of the decree
are appealable. The learned District Judge has rightly noted
that the order impugned before it was not an order in
execution of the appeal, but an order under Order XXI Rule 37
of the Code.
7. Even otherwise assuming the appeal is not maintainable
and the order passed by the District Court is set aside, the4 WP No.108 of 2014
consequence would be of revival of the order passed by the
Civil Judge directing detention of the respondents for 90 days.
Therefore, while considering the rival contentions on
maintainability of the appeal before the District Court in
exercise of my jurisdiction under Article 227 of Constitution of
India, I will have to take into consideration the ultimate effect.
8. When the order holding that respondents were guilty was
passed by the learned Civil Judge, the respondents were not
present in the Court. Therefore, on the next date the
respondents had moved the matter before the learned Civil
Judge pointing out that the affidavit of assets was filed.
Inspite of the same, learned Civil Judge proceeded to pass an
order of detention of 90 days. This is perverse, to say the
least.
9. Granted that some deterrent action needed to be taken,
but directing detention of the respondents for a period of 90
days in civil prison, was highly disproportionate. Orders
directing party to be detained in civil prison are not to be
lightly passed. It is true that majesty of law needs to be
upheld, but such whimsical and arbitrary orders tend to lower
the majesty of law.
10. Though I am not inclined to interfere with the impugned
order, passed by the District Court some deterrent action
against respondents is warranted. The District Court also has
lost sight of the fact that merely because affidavit of assets was
not filed the conduct of the respondents for filing despite5 WP No.108 of 2014
opportunities is not completely washed away. The learned
District Judge ought to have passed some deterrent order
against the respondents, though not an imprisonment in civil
prison.
11. Considering the facts and circumstances of the case, I am
of the opinion that a fine of Rs.10,000/- in total, upon
respondents for not filing the affidavit of assets in time would
meet ends of justice. Accordingly, the petition is disposed of
by directing the respondents to pay costs of Rs.10,000/- in
total to the petitioner within a period of two weeks from
today. The petition is disposed of in above terms. Rule
discharged. No costs.
N. M. JAMDAR, J.
NH

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