IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 7249 of 2009
Date of Decision : December 14, 2009
M/s Wadhawa Mal Chanan Ram and another
....Petitioners
Versus
M/s Lachhman Dass Hem Raj
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. K.K.Garg, Advocate
T.P.S. MANN, J.
Order passed by the executing Court on 21.10.2009 has
been challenged by the judgment debtors by filing the present revision
under Article 227 of the Constitution of India.
Vide impugned order, the executing Court allowed the
application filed by the decree holder under Order XXI Rule 37 read
with Section 151 C.P.C., and directed the decree holder to deposit
subsistence allowance for a period of one month and on the same being
done, warrants of arrest to be issued against the judgment debtors for
the payment of the decretal amount alongwith interest.
In its application moved before the executing Court, the
decree holder averred that judgment debtors had refused to make the
payment of the decretal amount and, therefore, judgment debtors be sent
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to civil imprisonment. The said application was contested by the
judgment debtors by filing reply, wherein, apart from raising legal
objections on the ground of maintainability, it was averred that the
appeal filed by the judgment debtors against the decree under execution
had not been decided and, therefore, the decree had not attained the
finality.
Learned counsel for the petitioners has submitted that
neither the petitioners have left the local jurisdiction of the executing
Court nor transferred or concealed any property from the date of the suit
uptil now nor refused or neglected to pay any amount in order to satisfy
the decree or any property thereto. Moreover, no show cause notice has
been issued to the petitioners as to why the petitioner-Ashok Kumar,
owner of M/s Wadhawa Mal Chanan Ram-judgment debtor, be not
committed to prison. Therefore, the impugned order was illegal and
against the mandatory provisions of Section 51 of the Code of Civil
Procedure. Reliance has also been placed upon Neelam Gautam V
Balwinderjit Singh @ Bikramjit @ Happy 2004(3) R.C.R.(Civil) 519
(P&H).
Under Section 51 C.P.C., the executing Court has the
powers to order execution of the decree by delivery, attachment and sale
of any property or by arrest and detention in prison or by appointing the
receiver or in such manner as the nature of relief granted might require.
C.R. No. 7249 of 2009 -3-
In a case of decree for payment of money, before ordering detention in
prison of the judgment debtor, the executing Court is required to give an
opportunity to the judgment debtor of showing cause as to why he
should not be committed to prison and further the Court has to satisfy
that the judgment debtor was obstructing or delaying the execution of
the decree by attempting to abscond or leaving the local limits of the
jurisdiction of the Court or after institution of the suit dishonestly
transferred, concealed or removed any part of his property and since the
date of the decree, the judgment debtor had the means to pay the amount
of the decree and had refused or neglected to pay the same.
In the present case, a money decree was passed on
19.1.2006 against the judgment debtors for recovery of Rs.50,000/- with
interest and costs. On 9.12.2006 the decree holder applied for its
execution. This was followed by another application by the decree
holder under Order XXI Rule 37 C.P.C., for arrest and detention of
Ashok Kumar-petitioner in civil prison in order to execute the decree.
Notice of the said application was duly issued to the judgment debtors,
who filed their reply dated 26.9.2007. On 16.12.2008 Ashok Kumar-
petitioner made a statement before the executing Court to the following
effect:-
“Stated that neither do I have any property nor any
business. My business has since failed. I have filed a
number of recovery suits out of them two stand decreed.
C.R. No. 7249 of 2009 -4-
Another is a complaint pertaining to a cheque. As and
when I am able to obtain any payment, I will make
payment to the decree holder in the first instance”.
It appears that the aforementioned statement was made by
Ashok Kumar-petitioner only to tide over the situation where he was
apprehensive of being sent to civil prison. No doubt, in view of the
aforementioned statement the execution proceedings became delayed.
Again on 4.3.2009 he made statement before the execution Court, which
is also reproduced hereinbelow:-
“Stated that my two/three recovery suits are pending.
As and when I am able to obtain any money in the
same, I will settle the matter with the decree holder and
make the payment”.
It is the admitted fact that in pursuance of both the
aforementioned statements, the judgment debtors did not make any
payment to the decree holder. Instead, an attempt had been made by
them to delay the execution of the money decree passed against them.
Under these circumstances, learned executing Court was well within its
jurisdiction to order for detention of Ashok Kumar-petitioner in civil
prison.
In the case of Neelam Gautam (supra), the Court spelt out
the various situations wherein the executing Court could order the
execution of a decree by arrest and detention in prison of the judgment
C.R. No. 7249 of 2009 -5-
debtor. In the said case the executing Court had declined the
application of the decree holder on the ground that he had not been able
to satisfactorily establish the conditions contained in Section 51 C.P.C.
The High Court, while noticing the fact that the judgment debtor had
left the local limits of the jurisdiction of the executing Court and also
the fact that the judgment debtor was owner of a Ford Icon Car and had
disposed of one Maruti Car and a Motor Cycle, accepted the revision
filed by the decree holder and directed the executing Court to execute
the decree by arrest and detention of the judgment debtor in accordance
with law. Similarly, in the present case, the intention of the judgment
debtors in delaying the execution of the decree against them, has rightly
been noticed by the executing Court in view of the fact that despite
making statements in the form of a compromise twice before the
executing Court, the judgment debtors had failed to make the payment
of a single penny to the decree holder.
In view of the above, no ground for interference in the
impugned order is made out. The revision is, therefore, dismissed.
( T.P.S. MANN )
December 14, 2009 JUDGE
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