IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 1299 of 2010(O)
1. P.V.RAMU, S/O.ELUMBAN, PUTHOORVAYAL
... Petitioner
2. P.LAKSHMANAN, PUTHOORVAYAL VEEDU,
3. M.C.SEBASTIAN, MADATHIL PARAMBIL HOUSE,
4. P.M.RAGHAVAN, PANAYI HOUSE,
Vs
1. M/S.MAHARASHTRA APEX CORPORATION LTD.,
... Respondent
For Petitioner :SRI.P.C.CHACKO(PARATHANAM)
For Respondent :SRI.S.R.DAYANANDA PRABHU
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :31/01/2011
O R D E R
P.S.GOPINATHAN, J.
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O.P.(Civil) No.1299 OF 2010
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Dated this the 31st day of January, 2011
J U D G M E N T
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The petitioners are the judgment debtors in
A.P.No.150/2001, an arbitration award. In execution of the said
award, the respondent filed E.P.No.8/2009. Ext.P2 is the copy of
the Execution Petition. The prayer sought in the Execution
Petition is for arrest and detention of the judgment debtors.
According to the 1st respondent, the judgment debtors are
having sufficient means to discharge the decree debt. To prove
the same, affidavits were also filed before the Execution Court.
Notice under Order XXI Rule 37 was served upon the judgment
debtors. In response to the notice, judgment debtors filed
separate counter statements. The 1st judgment debtor
(Petitioner No.1) mainly assailed the award though execution
court is not the forum to assail the award. He had admitted that
he had one acre of property and that was also attached by the
decree holder. There is no mention that he lacks means to
discharge the decree debt. It is revealed by the statment filed
him under Order XXI Rule 41(2) CPC that he is employed in
O.P.(C) No.1299/2010 2
police department. However, he suppressed the gross salary.
Other judgment debtors had raised a contention that they have
no means to discharge the decree debt. The Execution Court on
10.12.2010 passed the impugned order, which is quoted in
paragraph 5 of the petition as follows: (Certified copy of the
order is not produced)
“JD not filed affidavit as represented on
15.11.2010. Decree holder filed affidavit
stating that Jds are having sufficient means
but not paying deliberately. It prima facie
proved that deliberate omission on the part of
JDs to remit decree amount, long pending as
EP, hence ordered to arrest the JDs.
Issueorder of arrest. Arrest on 4.1.2011.”
Assailing the said order, this petition was filed.
2. I have heard Sri.P.C.Chacko, the learned counsel
appearing for the petitioner and Sri.S.R.Dayananda Prabhu, the
learned counsel appearing for the respondent.
O.P.(C) No.1299/2010 3
3. The learned counsel for the petitioner would submit
that the 1st petitioner though employed in Police department,
was having no sufficient means to pay off the decree debt in
lump as the total claim exceeds Rs.10,25,000/-. In such
submission, there is total lack of bonafides because the
1st petitioner has no case that he had paid anything though the
award was passed ten years back. Had he cared to pay within
the means, sometimes, the decree debt could have been wiped
off. It is evident that he was purposefully avoiding payment. As
regards the other petitioners, the argument advanced is that
since they are having no means to discharge the decree debt, the
prayer for execution of the decree by arrest and detention is not
at all sustainable. It was also submitted by the learned counsel
for the petitioner that though the petitoners had filed objection,
the Execution Court didn’t consider the same. According to the
learned counsel, that is the main grievance of the petitioners.
4. According to the learned counsel for the respondent,
the court below ordered arrest after having satisfied by the
affidavit of the respondent that the petitioners have sufficient
O.P.(C) No.1299/2010 4
means to discharge the decree debt and they are wilfully
avoiding discharge and hence the order of arrest is perfectly
justified. It was also submitted that if it is a defence of no
means, they could very well raise the same before the court
below during the course of enquiry under Order XXI Rule 40 and
this petition is premature and misconceived and the order
impugned is not liable to be interfered.
5. Going by Order XXI Rule 40, I find that even if the
petitioners were arrested and brought before the Execution
Court in pursuance to the warrant of arrest, since the plea is of
no means, they are at liberty to raise their objections before they
being sent to civil prision as the legislature had provided post
arrest enquiry. For a correct appraisal, I find that it would be
appropriate to read Order XX1 Rule 40.
“40. Proceedings on appearance of
judgment debtor in obedience to notice or
after arrest:-
(1) When a judgment debtor appears
before the Court in obedience to a notice
issued under Rule 37, or is brought before
the Court after being arrested in execution
O.P.(C) No.1299/2010 5
of a decree for the payment of money, the
Court shall proced to hear the decree holder
and take all such evidence as may be produced
by him in support of his application for
execution, and shall then give the judgment
debtor an opportunity to showing cause why
he should not be committed to civil prison.”
In the light of the above provision, when the judgment debtors
are brought before the Execution Court after being arrested, the
Execution Court is bound to hear the decree holder and take all
such evidence and the judgment debtors shall be given an
opportunity to show cause for not committing to civil prison in
execution of the decree. At that stage, the petitioners can raise
their plea of no means. So, appropriate remedy is provided
under the Civil Procedure Code itself even if the petitioners
were arrested and produced before the court. The petitioners
ought have availed the same instead of rushing to this Court.
Since it is revealed that the Execution Court had ordered to
issue arrest warrant on satisfaction of the means of the judgment
debtors for discharge of the decree debt, on the basis of the
affidavit filed by the decree holder in support of the Execution
Petition and since the Civil Procedure Code provides provision
O.P.(C) No.1299/2010 6
for hearing the judgment debtors before committing to the civil
prison, I find that the order impugned has no way caused any
prejudice to the petitioners. Neither it is illegal so as to be
rectified in exercise of the powers vested on this Court under
Article 227 of the Constitution of India.
6. I find that, in the above circumstance, this Writ
Petition can be disposed with a direction to the petitioners to
move the Execution Court for ventilating their grievance and to
direct the Execution Court to proceed further only after
conducting an enquiry as contemplated under Order XXI
Rule 40.
In the above circumstance, this Writ petition is disposed
with a direction to the Execution Court to proceed further only
after conducting an enquiry under Order XXI Rule 40. It is
submitted from the Bar that the Execution Petition is posted on
17.2.2011. The petitioners are directed to appear before the
Execution Court on 17.2.2011. On their appearance, they shall
be treated as brought under arrest and to proceed further under
O.P.(C) No.1299/2010 7
Order XXI Rule 40. If the petitioners fail to appear, the
execution court shall issue fresh warrant. In the case of the 1st
petitioner, issuance of arrest warrant shall be intimated to the
Superintendent of Police of the District with request for
initiating action under Rule 51 of the Government Servants’
Conduct Rule. No costs.
(P.S.GOPINATHAN, JUDGE)
ps