This Civil Revision Petition Is ... vs B
2023 Latest Caselaw 3606 AP

       HON'BLE DR. JUSTICE K. MANMADHA RAO

       CIVIL REVISION PETITION No.960 of 2023

ORDER :

This Civil Revision Petition is filed by the petitioner

against the Order, dated 31.03.2023 passed in E.P.No.161

of 2019 in O.S.No.48 of 2018 on the file of Court of

Additional Senior Civil Judge, Ongole.

2. Originally the suit in O.S. No.48 of 2018 was filed

before the Additional Senior Civil Judge, Ongole (for short

"the Court below), for recovery of the suit amount. The

same was decreed with costs by the Court below vide

judgment dated 15.07.2019. Thereafter, respondent/D.Hr,

approached the petitioner/J.Dr and requested him to

discharge the decree amount, but in vain. Further, the

petitioner/J.Dr is drawing salary of Rs.72,000/- per month,

earning Rs.20,000/- per month on money lending business,

has a house worth of Rs.40,00,000/- but he is intentionally

avoiding to honour the decree and the petitioner/J.Dr

shifted his residence beyond the jurisdiction of this Court

and it is very difficult to recover the amount form the J.Dr.

hence, the respondent/D.Hr preferred EP.No.161 of 2019

before the Court below. The same was allowed with costs

vide order dated 31.03.2023 and ordered the arrest of J.Dr

towards realization of the decretal amount and also issued

arrest warrant against the J.Dr under Order XXI Rule 38 of

CPC on payment of process. Aggrieved by the same, the

present Civil Revision Petition is filed.

3. Heard Sri P. Pavan Kumar, learned counsel

appearing for the petitioner and Sri Naga Praveen.V.,

learned counsel appearing for the respondents. Perused the

material available on record.

4. As seen from the Proceeding sheet, this Court vide

order, dated 13.04.2023, in I.A No.1 of 2023, has granted

stay of arrest of petitioner/J.Dr in E.P.no.161 of 2019 in O.S

No.48 of 2019 on the file of Additional Senior Civil Judge,

Ongole, till 27.04.2023, in view of the law laid down by the

composite High Court of Judicature of Andhra Pradesh in

the case of Chalapathi Chit Fund (P) Ltd., Ongole vs. B.

Rajasekhar and others1 and the same is extended from

time to time. Thereafter, on 13.07.2023, learned counsel for

the petitioner sought time to get instructions from his client

2013 (6) ALD 625

with regard to payment of decretal amount in two (02)

installments.

5. During hearing, learned counsel for the petitioner

submits that the order of the Court below is contrary to law,

weight of evidence and probabilities of the case. He submits

that the E.P. which was filed by the D.Hr under Order XXI

Rules 37 and 38 of CPC not maintainable against the

petitioner/J.Dr as he is a Government employee and there is

a provision for recovery of decree amount by way of salary

attachment and the petitioner/J.Dr is getting salary of

Rs.90,000/-, the D.Hr has to recover the decree amount by

way of attachment of salary instead of seeking his arrest.

He further submits that the Court below went wrong in

holding that as the petition is maintainable and the same is

allowed instead of dismissed. The Court below allowed the

E.P. without giving any reasonable ground and the reasons

given by the Court below are not sound and tenable and

ordering arrest, amounts to depriving the life and liberty of

the petitioner.

6. To support his contention, learned counsel has

relied upon a case of Chalapathi Chit Fund's case (supra),

and submits that under Order XXI Rule 30 read with

Section 51 CPC, the decree holder can simultaneously seek

execution of the decree by delivery of property specifically

decreed; by attachment and sale or by sale without

attachment of any property; by arrest and detention in

prison for such period not exceeding the period specified in

Section 58, where arrest and detention is permission under

that section or appointing a Receiver.

7. On the other hand, learned counsel for the

respondents submits that the petitioner/J.Dr is drawing net

salary of Rs.18,600/- only after deductions and that seeking

arrest of the petitioner/J.Dr is not maintainable as no prior

notice was issued to the petitioner/J.Dr. The filing of the

execution petition seeking arrest of the J.Dr without

proceeding against the salary is not tenable. The

D.Hr/respondents intentionally filed the E.P to threaten

J.Dr/petitioner and to cause mental agony to him. There

are no merits in the petition and hence prayed to dismiss

the same.

8. Learned counsel for the respondents has relied

upon a judgment of this Court reported in J.J. Shankar v.

W.M. Ismail2, wherein it was held that :

"An analysis of Section 51. Civil P.C. would clearly show that while the Courts are empowered to execute a decree by ordering arrest and detention of a judgment-debtor. there are several procedural and substantive safeguards provided by the Proviso so that an honest judgment-debtor without means to pay may not be harassed. The proviso makes it clear that before ordering arrest, the judgment-debtor must be given a notice and an opportunity to show cause why he should not be committed to prison. After hearing the judgment-debtor, the Court must be satisfied that the judgment-debtor was acting dishonestly or with bad faith. Clause (a) of the proviso deals with two types of conduct of the judgment-debtor. One is, where he is attempting to abscond or leave the local limits of the jurisdiction of the Court with the object or effect of obstructing or delaying the execution of the decree or where he was dishonestly transferring, concealing or removing any part of his property or was committing any other act of bad faith in relation to his property with the object of obstructing or delaying the execution of the decree. Clause (b) with which we are more directly concerned deals with a situation where a judgment-debtor having means to pay the amount of the decree or some substantial Part thereof, refuses or neglects to pay the same

..... A modern society, based upon money economy, is sure to collapse if debts are not promptly collected. It is not without social significance that all religions insist upon payment of debts as a spiritual duty. The doctrine of "pious obligation", is well known to Hindu Law. In principle, therefore. Section 51. Civil P. C. with the aim of collecting old debts, cannot be objected to. The method it provides cannot be called cruel or unusual or inhuman either, Section 51. Civil P. C. does not authorise the execution of a money decree by arrest of the judgment-debtor except in case where the Judgment-debtor acts in bad faith. In other words every judgment-debtor is not made by the Act subject to Section 51. Civil P. C. There can be no legal or constitutional objection for execution of a decree by arrest and detention of an individual judgment-debtor who deliberately refuses or neglects to pay a decretal amount while possessing the capacity to pay. Social moratorium is a different matter."

AIR 1981 Andhra Pradesh 336

9. He has also relied upon a decision of Hon'ble

Supreme Court reported in Shyam Singh versus Collector,

District Hamirpur, U.P and others3, wherein the Apex

Court held that :

From time to time this question has been examined in connection with Section 51 of the CPC (hereinafter referred to as 'the Code'). Section 51 of the Code provides that, subject to such conditions and limitations as may be prescribed, on application; of the decree-holder the Court may order execution of the decree by different modes mentioned in the said section including:-

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property; and

(c) by arrest and detention in prison for such period not exceeding the period specified in; Section 58, where arrest and detention is permissible under that section.

11. It has been said the difficulties of a litigant''begin when he has obtained a decree". It is a matter of common knowledge that far too many obstacles are placed in the way of a decree-holder who seeks to execute his decree against the property of the judgment-debtor. Perhaps because of that there is no statutory provision against a number of execution: proceedings continuing concurrently. Section 51 of the Code gives an option to the creditor, of enforcing the decree either against the person or the property of the debtor; and nowhere it has been laid down that execution against the person of the debtor shall not be allowed unless and until the decree-holder has exhausted his remedy against the property. Order 21, Rule 30 of the Code provides that "every decree for payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the Judgment- debtor, or by the attachment and sale of his property, or by both."

1993 Supp (1) Supreme Court cases 693

10. On perusing the material this Court observed

that, it is an admitted fact that the petitioner/J.Dr is a

Government employee and drawing salary. It is not his case

that there are any other liabilities than the decretal debt as

against his salary. As such, there is no point in contending

that his salary cannot be considered as his capacity to pay

the decretal debt. Thus, there is a mode of execution of the

decree by realization from salary by way of attachment and

recovery available to the respondents/D.Hr. It is also

equally open for the respondents/D.Hrs to opt for any other

mode of execution of the decree available under law.

11. During hearing, this Court observed that, as per

Section 51 of CPC, it would clearly show that while the

Courts are empowered to execute a decree by ordering arrest

and detention of a J.Dr, there are several procedural and

substantive safeguards provided by the Proviso so that an

honest J.Dr without means to pay may not be harassed.

The proviso makes it clear that before ordering arrest, the

judgment debtor must be given a notice and an opportunity

to show cause why he should not be committed to prison.

After hearing the J.Dr, the Court must be satisfied that the

J.Dr was acting dishonestly or with bad faith. Further, there

can be no legal or constitutional objection for execution of a

decree by arrest and detention of an individual J.Dr who

deliberately refuses or neglects to pay a decretal amount

while possessing the capacity to pay. This Court further

observed that, if really the petitioner/J.Dr has intention to

discharge the E.P. amount, he ought to have taken loan

when E.P. is filed and might have discharged the E.P

amount and it is only tactics of the petitioner/J.Dr to avoid

payment of E.P amount. Thus, it is very clear that the

petitioner/J.Dr, having capacity to pay off the decretal debt

since failed to do so, the execution Court is right in ordering

issuance of warrant of arrest for recovery of the decretal

amount.

12. In view of the above discussion, this Court found

no illegality or perversity in the impugned order passed by

the Court below warranting interference by this Court in

exercise of its supervisory jurisdiction under Article 227 of

the Constitution of India.

13. Finding no merit in the instant revision petition and

devoid of merits, the same is liable to be dismissed.

14. Accordingly, the Civil Revision Petition is dismissed.

There shall be no order as to costs.

15. It is made clear that the interim order granted by

this Court is hereby vacated.

As a sequel, miscellaneous applications pending, if

any, shall also stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date : 21 -07-2023 Gvl

HON'BLE DR. JUSTICE K. MANMADHA RAO

CIVIL REVISION PETITION No.960 of 2023

Date : 21 .07.2023

Gvl