IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 6/7/2004
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
CIVIL REVISION PETITION(NPD) NO.1448 of 2003
AND
C.M.P.NO.15722 of 2003
Dharmalingam .. Petitioner
-VS-
Pavalkodi .. Respondent
Civil Revision Petitions filed under Section 115 of C.P.C. as stated
therein.
!For Petitioner .. Mr.P.Valliappan
for Sarvabhauman Associates
^For Respondent .. No appearance.
:O R D E R
The above Civil Revision Petition is directed against the fair and
decretal order dated 7.8.2003 made in E.P.No.70 of 2002 in O.S.No.729 of 1994
by the Court of Subordinate Judge, Kallakurichi.
2. Tracing the history of the above Civil Revision Petition coming to
be filed before this Court, what comes to be known is that the respondent
herein filed the suit in O.S.No.739 of 1994 on the file of the Court of
Subordinate Judge, Kallakurichi and the said suit was decreed on 28.4.1995 and
thereafter the respondent/decree-holder has filed a petition for execution in
E.P.No.70 of 2002; that in the execution petition an order of arrest was
ordered on 7.8.2003, testifying the validity of the said order, petitioner has
come forward to file the above Civil Revision Petition praying for the relief
extracted supra.
3. Today, when the above Civil Revision Petition was taken up for
consideration in the presence of the learned counsel for the petitioner, with
no representation on behalf of the respondent, the learned counsel for the
petitioner would submit that the petitioner is a man of no means; that
sufficient materials have been placed before the lower Court to the effect
that the petitioner is a man of no means and that he is a cooly eking out his
daily bread by doing cooly work. The learned counsel would also press into
service the landmark judgment delivered by the Hon’ble Apex Court reported in
Jolly George Varghese v. Bank of Cochin (A.I.R 1980 S.C.470) wherein it is
held:
” 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 Art.11 (of the Covenant) and Art.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 Sec.51 with
the Covenant and the Constitution.
The question may squarely arise some day as to whether the Proviso to Sec.51
read with O.21, Rule 37 is in excess of the Constitutional mandate in Art.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 virus,
that is why we are desisting from that essay.
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 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 Sec.51. An earlier
adjudication will bind if relevant circumstances have not materially changed.”
The said decision has been followed by this Court in a case reported in
K.M.Kannu Gounder v. Mahboob Ali Sahib and another (2003)2 M.L.J.3 29)
In such condition when a man is not having any means to clear off his
debts, he cannot be arrested and hence this Court is left with no choice but
to allow the above Civil Revision Petition following the proposition held by
the Hon’ble Apex Court and other upper forums and hence the following order:
In result,
(i) the above Civil Revision Petition stands allowed;
(ii) the fair and decretal order dated 7.8.2003 made in E.P.No.70 of
2002 in O.S.No.729 of 1994 by the Court of Subordinate Judge, Kallakurichi is
set aside;
(iii) however, in the circumstances of the case, there shall be no
order as to costs;
(iv) consequently, C.M.P.No.15772 of 2003 is closed.
Index:Yes
Internet:Yes
gr.
To
The Subordinate Judge, Kallakurichi.