M.M.Saleem v. R.Praveen Kumar Reddy

IN THE H IGH COURT OF JUDICATURE AT MADRASDATED:16.07.2010CORAMTHE HONOURABLE Mr. JUSTICE T.S.SIVAGNANAMCRP(NPD) No.1328/2004 & C.M.P.No.10772/2004M.M.Saleem... Petitioner/Respondent/Judgment DebtorVs.R.Praveen Kumar Reddy ... Respondent/Petitioner/Decree HolderPrayer: Civil Revision Petition filed under Article 227 ofConstitution of India filed against the order of arrest dated09.03.2004 passed in E.P.No.1805 of 2002 by the Hon'ble IXAssistant Judge City Civil Court, Chennai. For Petitioner/Judgment Debtor: Mr.C.Ravichandran For Respondent/Decree Holder : Mr.P.Subba ReddyORDERThis revision is by the Judgment-debtor/respondent inE.P.No.1805/2002 on the file by the IX Assistant Judge City CivilCourt, Chennai.2. The respondent/decree-holder had filed O.S.No.11006/1996for recovery of money and the suit was decreed by Judgment anddecree dated 12.03.2002 and to realise the decree amount, therespondent filed E.P.No.1805/2002 and sought the assistance of theCourt for arrest and detention of the Judgment-debtor under Order21 Rule 37 & 38 CPC. The petitioner/Judgment-debtor filed acounter in the execution petition stating that he has not beenserved with the copy of the means affidavit filed along with theexecution petition and that it is mandatory on the part of thedecree-holder to serve copy of such affidavit. It was furtherstated that his business has deteriorated and he is penniless andhis mother is taking care of his family from the pension receivedby her. The Execution Court by its order dated 09.03.2004, orderedarrest of the petitioner. The Executing Court by relying upon thedecision of this Court in Chinnaraj and another Vs. Kanthasamy 2000(IV) CTC 481, held that there is no necessity to cause an enquiryor afford any opportunity to the Judgment-debtor and proceeded toorder arrest. Aggrieved by such order, the petitioner is beforethis Court. https://hcservices.ecourts.gov.in/hcservices/

3. The learned counsel appearing for the petitioner wouldsubmit that the Executing Court committed an error in invoking theprovisions of Order 21 Rule 37 & 38 CPC, without any materialparticulars especially when, there is no allegation made by therespondent/decree holder that the petitioner/Judgment-debtor hascommitted any act with the object, of delaying the execution of thedecree or that he is likely to abscond or leave the local limits ofthe jurisdiction of the Court. It is further contended that theExecuting Court failed to consider the counter filed by thepetitioner, wherein it has been specifically stated that the meansaffidavit has not been served. Further, it is submitted by thelearned counsel that the Judgment relied on by the Executing Courtin the case of Chinnaraj and another Vs. Kanthasamy 2000 (IV) CTC481, referred supra, is not applicable to the facts andcircumstances of the present case and the Executing Court hasmechanically ordered arrest without rendering a specific findingalleging that the petitioner had intention to delay the executionof the decree. Further, it is contended that the Court below oughtto have read Order 21, Rule 37, 38 & 40 in conjunction and not inisolation. The learned counsel relied on the decisions of thisCourt in support of his contentions: M.Muthuswamy Vs. Supasri ChitFunds, Coimbatore and another, 2000 (II) CTC 168, N.C.DuraisamyNaidu Vs. K.Pappaiya Naidu, 2007 (3) CTC 67 and the decision inParkash Chand V. Punjab National Bank and others, AIR 1999 Punjaband Haryana 79.4. The stand of the respondent is by relying upon the decisionof this Court in Chinnaraj and another, referred supra and thatthis Court has held that there is nothing in the Code, whichindicates or compels the Executing Court either to give anopportunity to the Judgment-debtor or the decree-holder to adduceevidence to have a full-fledged enquiry and record its reasons inwriting before even it passes an order of arrest against theJudgment-debtor. Therefore, it is contended that the order of theCourt below is perfectly legal and valid.5. I have heard the learned counsels for the parties andgiven my anxious consideration to the issue raised in the presentrevision. Order 21 Rule 37(1) provides that where an applicationis for execution of a money decree by the arrest and detention incivil prison, the Court instead of issuing a warrant of arrest tothe Judgment debtor, issue a notice calling upon him to appearbefore the Court on a day to be specified in the notice and showcause why he should not be committed to civil prison. In termsproviso to Rule 37 (1) such notice shall not be necessary if theCourt is satisfied, by affidavit, or otherwise that, with the https://hcservices.ecourts.gov.in/hcservices/ object or effect of delaying the execution of the decree, theJudgment-debtor is likely to abscond or leave the local limits ofthe jurisdiction of the Court. Rule 40 states, when a Judgmentdebtor appears before the Court in obedience to a notice issuedunder Rule 37, or is brought before the Court after being arrestedin execution of a money decree, Court shall proceed to hear thedecree-holder and take all such evidence and then give anopportunity to the Judgment debtor to show cause why he should notbe committed to the civil prison. Section 51 of the code statesthat before an order of arrest and detention in prison is made, theCourt should give an opportunity to the Judgment-debtor for showingcause as to why he should not be committed to prison for reasons tobe recorded in writing is satisfied of any of the requirementsprescribed in clauses a, b or c of the proviso. This Court inNamachivaya Mudaliar Vs. Manickavelu and Co, AIR 1972 Mad 292, heldthat after reading section 51 and Rules 37 & 40 of Order 21 CPC, itis clear that the proviso to Section 51 is applicable and the Courtis bound to record in writing its specification of one of theconditions prescribed in the Section, only when it commits a personto prison and not when issuing a warrant of arrest. This decisionwas referred to by the Division Bench in P.G. Ranganatha PadayachiV. Mayavaram financial Corporation, AIR 1974 Mad 1, and afterdiscussing the law on the subject held thus:- "10. To sum up therefore, the order of arrest passedby the executing Court without giving a finding regardingthe means of the judgment-debtor to pay the decree amountis not one without jurisdiction as the order of arrest isonly under Order XXI Rule 37(2). Needless to say that theexecuting Court should necessarily go into the question ofmeans of the judgment-debtor to pay the decree amountafter the latter is arrested and brought to Court andbefore deciding whether the judgment-debtor has to becommitted to prison or not in execution of the decree." 6. The above referred decision in the case of NamachivayaMudaliar and P.G. Ranganatha Padayachi, were relied on by thisCourt in the case of Chinnaraj and another, referred supra and thisCourt held that there is nothing in the Code, which compels theCourt to give an opportunity to the Judgment debtor or the decree-holder to adduce evidence and record its reasons in writing beforeeven passing an order of arrest against the judgment-debtor.Though, the executing Court referred to the decision of this Courtin the case of Chinnaraj and another, referred supra, the orderpassed by the executing Court does not assign any reason that theCourt is satisfied that there are prima facie material before theCourt for proceeding under order 21 Rule 37. This has to be culledout only from the order as the order has to speak for itself andevery decision should be supported by reasons. The power under https://hcservices.ecourts.gov.in/hcservices/ Rule 37 is not just an innocuous matter, as the decision whether toissue of warrant of arrest or to issue a show cause to theJudgment-debtor as to why he should not be arrested are mattershaving an impact on human dignity. The Hon'ble Supreme Court inJolly George Varghese and another V. The Bank of Cochin, AIR 1980SC 470 had observed how gruesome and obnoxious is the remedy ofincarcerating a debtor for an unpaid debt under modern conditionsand in the contest of human rights. As observed earlier, perusalof the order passed by the executing Court its clear that apartfrom referring to the decision of this Court in the case ofChinnaraj and another, referred supra, the Court has not recordedits satisfaction and mechanically proceeded to order arrest. It isrelevant to note that in the counter affidavit, thepetitioner/Judgment debtor has specifically stated that the copy ofthe means affidavit filed along with the execution petition was notserved. Therefore, even going by the language of Rule 37 (1) ofOrder 21, the satisfaction of the Court is a sin-qua-non forissuing an order of arrest. The term "satisfied" used in theproviso cannot be held to be an empty expression especially, whenthe matter involves human rights. This satisfaction of the Courtto invoke the power should find place in the order and it should beapparent from the face of the record and therefore, it is necessaryfor the Court to record certain reasons as to why it is satisfiedthat the power under the proviso to Rule 37(1) of Order 21 CPC hasbeen invoked. An order without reasons has been held to be anorder in violation of the principles of natural justice. This Courtin K.AL.R.M. R.M.Alagappan Vs. Rajaguru & Co., (1985) I MLJ 331,after referring to the Judgments of the Hon'ble Supreme Court inJolly George Varghese and another V. The Bank of Cochin, AIR 1980SC 470, Rama Narayan Agarwal v. State of U.P. (1983) 4 SCC 276,held thus:-"6..... In this case, nothing is found in theimpugned order that the judgment-debtor is having funds orthat he is purposely delaying to pay the decretal amount.Under these circumstances, I am of the view that theimpugned order of the executing Court has to be set asideand it is accordingly set aside and this civil revisionpetition is allowed." 7. In view of the above reasons, this Court is satisfied thatthe order passed by the executing Court is to be set aside and thematter is to be remanded to the executing Court for freshconsideration. https://hcservices.ecourts.gov.in/hcservices/

8. In the result, the Civil Revision Petition is allowed andthe impugned order is set aside and the matter is remanded to theexecuting Court for fresh consideration. Since, the Executingpetition is in the year 2002, the Executing Court is requested todispose of the executing petition as expeditiously as possiblepreferably within a period of four months from the date of receiptof a copy of this order. Consequently, connected miscellaneouspetition is closed. No costs. pbnSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarToThe Registrar,IX Assistant Judge City Civil Court, Chennai.+ 1 cc to Mr. P. Subba Reddy, Advocate SR No.51693+ 1 cc to Mr. C. Ravichandran, Advocate SR No.51432VD(CO)SR/21.7.2010 Order in CRP(NPD) No.1328/2004