Karnataka High Court

Mr. Vincent Oswald D Souza vs Mr. Gracian Lawrence Pereira on 17 January, 2022

Bench: Suraj Govindaraj

                                          WP NO.35854 OF 2016
                                1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 17TH DAY OF JANUARY, 2022

                         BEFORE

        THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

       WRIT PETITION NO.35854 OF 2016 (GM-CPC)

BETWEEN:

MR. VINCENT OSWALD D'SOUZA
SON OF THOMAS BENJAMINE D'SOUZA
AGED ABOUT 60 YEARS
RESIDENT OF "SAGILLA"
KOTEKANI CROSS ROAD
ASHOKNAGAR POST
MANGALORE-6
                                               ...PETITIONER
(BY SRI. P.P. HEGDE, SENIOR COUNSEL FOR
    P.P. HEGDE AND ASSOCIATES

AND:

MR. GRACIAN LAWRENCE PEREIRA
SON OF LATE D.M.G.PEREIRA
AGED ABOUT 67 YEARS
RESIDENT OF "DEL-DAT"
CHILIMBI, URVA
MANGALURU-6
                                              ... RESPONDENT
(BY SRI. CYRIL PRASAD PAIS, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARY OR ANY OTHER APPROPRIATE WRIT OR SETTING
ASIDE THE ORDER DATED 02.04.2016 PASSED BY THE II ADDL.
SENIOR CIVIL JUDGE & CJM, IN EX.C.11/2016 WHEREBY THE
ARREST WARRANT WAS ISSUED AGAINST THE PETITIONER
WITHOUT ISSUING A SHOW CAUSE NOTICE UPON HIM VIDE
ANNEXURE-A AND ETC.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
                                               WP NO.35854 OF 2016
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                            ORDER

1. The petitioner is before this Court seeking for the

following reliefs:

a. Issue a Writ of Certiorari or any other appropriate Writ or order setting aside the Order dt. 02.04.2016 passed by the II Addl. Senior Civil Judge & CJM, in Ex.C. 11/2016 whereby the Arrest Warrant was issued against the petitioner without issuing a show cause notice upon him (Annexure-A);

b. Issue a Writ of Certiorari or any other appropriate Writ or order setting aside the Order dt. 26.04.2016 passed by the II Addl. Senior Civil Judge & CJM, in Ex.C.11/2016 reissuing the Arrest Warrant with the assistance of Urwa Police (Annexure-A);

c. Issue a Writ of Certiorari or any other appropriate writ or order setting aside the Order dt. 31.05.2016, passed by the II Addl. Senior Civil Judge & CJM, in Ex.C.11/2016 whereby the office of the Court below was directed to reissue Arrest Warrant as per its order dt. 26.04.2016 (Annexure-A);

d. Issue a Writ of Certiorari or any other appropriate Writ or order setting aside the order dt. 18.06.2016 passed by the II Addl. Senior Civil Judge & CJM, in Ex.C.11/2016, whereby the Court below permitted the Court Amin to break open the lock with Police aid and reissued the Delivery Warrant (Annexure-A).

2. Sri.P.P.Hegde, learned Senior counsel for the

petitioner would submit that the impugned order

dated 2.04.2016 and the order of re-issuance of WP NO.35854 OF 2016

arrest warrant dated 26.04.2016 and 31.05.2016,

as also the order dated 18.06.2016 permitting the

Court Amin to break open the lock with the police

help have been challenged in this petition.

3. Sri.P.P.Hegde, learned Senior counsel for the

petitioner would submit that when the first order

dated 2.04.2016 was passed, as also subsequent

orders had been passed by the trial Court, the

requirement of Section 51 of CPC and Order 21 Rule

37 of the I Schedule of the CPC having not been

followed by the trial Court, inasmuch as there is no

notice which has been issued by the trial Court

calling upon the petitioner to show cause why he

should not be committed to civil prison, without

such show cause notice having been issued, an

arrest warrant could not have been issued. He

further submits that the orders are contrary to the

decision of the Hon'ble Apex Court in Jolly George

Verghese -vs- Bank of Cochin [(1980)2 SCC

360)].

WP NO.35854 OF 2016

4. Sri.Cyril Prasad Pais, learned counsel appearing for

the respondent-decree holder would, however,

submit that the trial Court has taken into

consideration the fact that the decree which had

been passed in favour of the respondent had been

challenged in RFA No.34/2016 wherein a conditional

interim order had been passed directing the

Judgment debtor to deposit an amount of Rs.15

lakhs. Since the said amount had not been

deposited, it was clear that the Judgment debtor

was not willing to comply with the decree and make

payment of the due amounts and as such, he

submits that the same would suffice the

requirement of Section 51 and Order 21 Rule 37 of

CPC.

5. Heard Sri.P.P.Hegde, learned Senior counsel

appearing for the petitioner and Sri.Cyril Prasad

Pais, learned counsel for the respondent.

WP NO.35854 OF 2016

6. The short question that arises for consideration is,

whether the trial Court could have issued an arrest

warrant without issuing a show cause notice as

required under Section 51 and Order 21 Rule 37 of

CPC ?

7. The Hon'ble Apex Court in Jolly George

Verghese's case (supra)more particularly at

paragraph Nos.10, 11, 12 and 13 has held as

under:

"10. Equally meaningful is the import of Article 21 of the Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Article 21, read with Articles 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhi case [(1978) 1 SCC 248] as developed further in Sunil Batra v. Delhi Administration [(1978) 4 SCC 494 : 1979 SCC (Cri) 155] , Sita Ram v. State of U.P. [(1979) 2 SCC 656 : 1979 SCC (Cri) 576 : (1979) 2 SCR 1085] and Sunil Batra v. Delhi Administration [ WP No. 1009 of 1979, decided on December 20, 1979] lays down the proposition. It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of daridra narayana, is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means WP NO.35854 OF 2016

such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferrable from Article 11 of the Covenant. But this is precisely the interpretation we have put on the proviso to Section 51 CPC and the lethal blow of Article 21 cannot strike down the provision, as now interpreted.

11. The words which hurt are "or has had since the date of the decree, the means to pay the amount of the decree". This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Article 11 (of the Covenant) and Article 21 (of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor's other pressing needs and straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonised Section 51 with the Covenant and the Constitution.

12. The question may squarely arise some day as to whether the proviso to Section 51 read with Order 21 Rule 37 is in excess of the Constitutional mandate in Article 21 and bad in part. In the present case since we are remitting the matter for reconsideration, the stage has not yet arisen for us to go into the vires, that is why we are desisting from that essay.

13. In the present case the debtors are in distress because of the blanket distraint of their properties. Whatever might have been their means once, that finding has become obsolete in view of later happenings. Sri Krishnamurthi Iyer for the respondent WP NO.35854 OF 2016

fairly agreed that the law being what we have stated, it is necessary to direct the executing court to re- adjudicate on the present means of the debtors vis-a-vis the present pressures of their indebtedness, or alternatively whether they have had the ability to pay but have improperly evaded or postponed doing so or otherwise dishonestly committed acts of bad faith respecting their assets. The court will take note of other honest and urgent pressures on their assets, since that is the exercise expected of the court under the proviso to Section 51. An earlier adjudication will bind if relevant circumstances have not materially changed".

8. Though the said Judgment was passed in the year

1980 and there are several changed circumstances,

this Court is still bound by the said Judgment, more

so when the vires has not been challenged.

Applying the said Judgment, it is seen that before

the order of arrest warrant having been issued by

the trial Court, no show cause notice had been

served on the petitioner-Judgment debtor to appear

before the Court and show cause as to why he

should not be committed to civil prison.

9. In view of the said procedural irregularity, the order

dated 2.04.2016 cannot stand. That being so, the