Proceeding against the person as well as the property in the process of execution of a decree is almost a rarity. Even in the limited situations, which permit such a course, the discretion is to be used, more to refuse it, than to accord permission. The language of Rule 21 of Order XXI C.P.C. is clear on this aspect. It reads as under:
"21. Simultaneous execution: The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor."
7. Whatever may be the permissibility of simultaneous execution against the property and the judgment-debtor, in other kinds of decrees, when it comes to the question of execution of money decrees, proviso to Section 51 C.P.C. imposes several restrictions. In the body of Section 51 C.P.C., the 5 modes, through which a decree can be executed, depending on its purport, are mentioned. The proviso deals with the money decrees, in the context of detention of the judgment-debtor in prison. It reads as under:
"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 satisfied-
(a) that the judgment-debtor, with the object or effect 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 fiduciary 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 having the force of law for the time being in force, is exempt from attachment in execution of the decree."
8. It is only after a specific plea raised by the decree-holder touching on the circumstances referred to in Clauses (a), (b) and (c) is proved to the satisfaction of the Court and after affording an opportunity to the judgment debtor that the detention can be ordered. The fact that the detention of the judgment-debtor is prayed for with the simultaneous execution against property, does not relieve the executing Court of its obligation to follow the procedure stipulated under Section 51 C.P.C.
9. In A.K. Subrahmania Chettiar v. Ponnuswami Chettiar, the Madras High Court held that before any executing Court directs detention of a judgment-debtor, it must record finding as to the existence of the circumstances stipulated in Clauses (a) to (c) of proviso to Section 51 C.P.C. The principle squarely applies to the facts of this case. No discussion, whatever undertaken, much less, a finding was recorded by the executing Court.
10. Rules 37 and 40 of Order XXI C.P.C. prescribe the detailed procedure to be followed, before the arrest of judgment-debtor is ordered. The purpose of these provisions was discussed at length by this Court in Kasi Subbaiah Mudali v. Kasi Veeraswamy Mudali, and it was held, inter alia, as under:
"Since the liberty of a citizen is involved, law places a further obligation upon the decree-holder to prove certain facts as contemplated under Rule 40(1), that too, in the presence of a judgment-debtor. The other provisions contained in Rule 40 as well as the provisions of Section 51 and 55 of the C.P.C. add strength to these provisions. In a way, those provisions, in their cumulative effect, ascribe an element of criminal trial, to the proceedings under Rule 11-A of Order 21 of C.P.C."
Andhra High Court
P. Laxma Reddy vs Syndicate Bank, Zaheerabad ... on 19 July, 2005
Equivalent citations: 2005 (6) ALD 81, 2005 (5) ALT 606, IV (2006) BC 58
Bench: L N Reddy
1. The petitioner borrowed certain amount from the first respondent. Since he failed to repay the same, the first respondent filed O.S. No. 23 of 1988 in the Court of the learned Senior Civil Judge, Sangareddy. The suit was decreed. After it became final, the first respondent filed E.P. No. 30 of 1996. Initially, an item of immovable property was attached. Alleging that the sale of the property had to be adjourned for want of bidders, due to interference by the petitioner and other judgment-debtors, the first respondent filed E.A. No. 300 of 2004 under Order XXI Rule21 C.P.C. with a prayer to permit it to take simultaneous execution for arrest of the petitioner as well as to proceed against the property.
2. The petitioner filed the counter affidavit stating that the property that was attached in the execution does not belong to him, and that it was held by his father late P. Pandarinath Reddy and on his death, it became the joint family property of his mother, brothers and sisters. He stated that he never caused any obstruction and the application cannot be maintained. The executing Court passed a docket order, dated 31-3-2005 permitting the first respondent to take simultaneous execution against the petitioner. It straightaway issued warrant of arrest of the petitioner. The same is challenged in this Civil Revision petition.
3. Sri R. Gopi Mohan, learned Counsel for the petitioner submits that grant of permission to take simultaneous execution under Order XXI Rule 21 C.P.C. is an extraordinary step and it is only after recording findings on the various ingredients for such a step, that it could have ordered. He submits that even in such a case, the executing Court is under obligation to follow the procedure prescribed under Section 51 C.P.C. and only when it is found that the case falls under any one of the instances referred to therein, that the arrest could have been ordered. He further contends that the order under revision runs contrary to the procedure prescribed for arrest of judgment-debtors under Rules 11-A, 37, 40 of Order XXI and Section 55 C.P.C. He placed reliance upon certain precedents, in support of his contention.
4. Though notice was served upon the first respondent, one of the decree holders, it did not choose to enter appearance.
5. It is matter of record that the decree passed against the petitioner became final. E.P. No. 30 of 1996 was filed and an item of immovable property was attached. On the ground that the attached property could not be sold on account of the alleged obstruction caused by the petitioner, the first respondent filed E.A. No. 300 of 2004 under Rule 21 Order XXI C.P.C.
6. Proceeding against the person as well as the property in the process of execution of a decree is almost a rarity. Even in the limited situations, which permit such a course, the discretion is to be used, more to refuse it, than to accord permission. The language of Rule 21 of Order XXI C.P.C. is clear on this aspect. It reads as under:
"21. Simultaneous execution: The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor."
7. Whatever may be the permissibility of simultaneous execution against the property and the judgment-debtor, in other kinds of decrees, when it comes to the question of execution of money decrees, proviso to Section 51 C.P.C. imposes several restrictions. In the body of Section 51 C.P.C., the 5 modes, through which a decree can be executed, depending on its purport, are mentioned. The proviso deals with the money decrees, in the context of detention of the judgment-debtor in prison. It reads as under:
"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 satisfied-
(a) that the judgment-debtor, with the object or effect 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 fiduciary 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 having the force of law for the time being in force, is exempt from attachment in execution of the decree."
8. It is only after a specific plea raised by the decree-holder touching on the circumstances referred to in Clauses (a), (b) and (c) is proved to the satisfaction of the Court and after affording an opportunity to the judgment debtor that the detention can be ordered. The fact that the detention of the judgment-debtor is prayed for with the simultaneous execution against property, does not relieve the executing Court of its obligation to follow the procedure stipulated under Section 51 C.P.C.
9. In A.K. Subrahmania Chettiar v. Ponnuswami Chettiar, the Madras High Court held that before any executing Court directs detention of a judgment-debtor, it must record finding as to the existence of the circumstances stipulated in Clauses (a) to (c) of proviso to Section 51 C.P.C. The principle squarely applies to the facts of this case. No discussion, whatever undertaken, much less, a finding was recorded by the executing Court.
10. Rules 37 and 40 of Order XXI C.P.C. prescribe the detailed procedure to be followed, before the arrest of judgment-debtor is ordered. The purpose of these provisions was discussed at length by this Court in Kasi Subbaiah Mudali v. Kasi Veeraswamy Mudali, and it was held, inter alia, as under:
"Since the liberty of a citizen is involved, law places a further obligation upon the decree-holder to prove certain facts as contemplated under Rule 40(1), that too, in the presence of a judgment-debtor. The other provisions contained in Rule 40 as well as the provisions of Section 51 and 55 of the C.P.C. add strength to these provisions. In a way, those provisions, in their cumulative effect, ascribe an element of criminal trial, to the proceedings under Rule 11-A of Order 21 of C.P.C."
11. In the instant case, every provision relating to the detention of the petitioner in civil prison was followed in breach, to such a degree, as to obviate any discussion on it. Therefore, the order under revision cannot be sustained.
12. Hence, the Civil Revision Petition is allowed and the order passed in E.A. No. 300 of 2004 is set aside. There shall be no order as to costs.
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