Ajith Kumar P A v Universal Financiers, Chengannur

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS THURSDAY, THE 15TH DAY OF FEBRUARY 2018 / 26TH MAGHA, 1939** **OP(C).No. 443 of 2018** **AGAINST THE E.P.NO.21/2016 IN O.S.NO.76/2011 OF THE SUB COURT,CHENGANNUR.** **PETITIONER(S) ------------** **AJITH KUMAR P A, AGED 45, S/O P.K ANIRUDHAN, PUTHENVEETTIL, KOTTA PO, KARACKAD, MULAKUZHA VILLAGE, CHENGANNUR, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.V.PHILIP MATHEW SRI.GIBI.C.GEORGE** **RESPONDENT(S):** **------------** **UNIVERSAL FINANCIERS, CHENGANNUR, REGISTERED NO.S/148/02-03, REPRESENTED BY ITS PROPRIETRESS -SMT. SALLY THOMAS, MURIKKUMMOOTTIL, THITTAMEL MURI, CHENGANNUR VILLAGE, ALAPPUZHA DISTRICT.689121, REPRESENTED BY HER POWER OF ATTORNEY HOLDERSMT.DARSANA SUJITH, W/O SUJITH MATHEW, MURIKKUMMOOTTIL, THITTAMEL MURI, CHENGANNUR VILLAGE, ALAPPUZHA DISTRICT.689121.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** **OP(C).No. 443 of 2018 (O) ------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------** **EXHIBIT P1 COPY OF JUDGMENT DATED 23.03.2013 PASSED BY THE SUB COURT, CHENGANNUR IN O.S NO.76/2011, EXHIBIT P2 COPY OF E.P NO.21/2016 IN OS.76/2011. EXHIBIT P3 COPY OF ORDER DATED 06.02.2018 PASSED BY THE SUB COURT, CHENGANNUR IN E.P NO.21/2016 IN OS.76/2011. EXHIBIT P4 COPY OF MEMORANDUM OF APPEAL NO.30/2018. EXHIBIT P5 COPY OF I.A NO.107/18 FILED BY THE PETITIONER BEFORE THE ADDITIONAL DISTRICT COURT-1, MAVELIKKARA TO CONDONE DELAY. EXHIBIT P6 COPY OF I.A NO.108/18 FILED BY THE PETITIONER BEFORE THE ADDITIONAL DISTRICT COURT-1, MAVELIKKARA SEEKING STAY OF DECREE. EXHIBIT P7 COPY OF E.A NO.7/2018 FILED BY THE PETITIONER IN E.P NO.21/2016,. EXHIBIT P8 COPY OF POWER OF ATTORNEY DATED 31.12.2009.** ## **RESPONDENT(S)' EXHIBITS - NIL** **------------------------------** **/TRUE COPY/** **PS TO JUDGE** **TS 24/02/2018** ## ALEXANDER THOMAS, J. ----------------------------- O.P(C).No.443 Of 2018 --------------------------------- Dated this the 15th day of February, 2018. ## J U D G M E N T The prayers in this Original Petition (Civil) filed under the enabling provisions in Article 227 of the Constitution of India are as follows: “i) Pass appropriate orders setting aside Exhibit P3 order dated 06-02-2018 passed by the Sub Court, Chengannur in E.P.No.21/2016 in O.S.No.76/2011. ii) Direct the Sub Court, Chengannur to stay the proceedings in E.P.No.21/2016 till disposal of Exhibit P6 (I.A.No.108/18) application pending before the Additional District Court-I, Mavelikkara in A.S.No.30/2018. iii) Direct the Sub Court, Chengannur to consider and pass appropriate orders on Exhibit 27 application (E.A.No.7/2018) filed by the petitioner in E.P.No.21/2016.” 2. Heard Sri.V.Philip Mthews, learned counsel for the petitioner/judgment debtor. In the nature of the orders proposed to be passed in this petition, notice to the respondent/decree holder will stand dispensed with. 3. The petitioner herein is the judgment debtor in Ext.P-2 E.P.No.21/2016 in O.S.No.76/2011 on the file of the Sub Court, Chengannur. The respondent herein is the decree holder. The petitioner is mainly aggrieved by the impugned Ext.P-3 order dated ::2:: O.P(C).No.443 Of 2018 6.2.2018 rendered by the Sub Court, Chengannur, in the above said Execution Petition, whereby the execution court concerned had ordered detention of the petitioner and handing over his custody for nonpayment of the decretal debt. It is the case of the petitioner that Ext.P-3 order passed is illegal and it is in flagrant violation of the mandatory procedure contained in Order XXI Rule 40. It is contended that Order XXI Rule 40 only mandates the procedures on appearance of a decree holder in obedience to notice and in this case the petitioner has appeared through power of attorney. The impugned Ext.P-3 order rendered in E.P.No.21/2016 in O.S.No.76/2011 reads as follows: ## “ORDER The EP is for realization of an amount of Rs.2,62,672/-. The decree holder proved the means of the JD. JD is arrested and produced. On enquiry, why he should not be committed to the Civil prison, he submitted that he is ready to pay Rs.15,000/- and prayed for time for remitting balance amount. He has no case that he has no means to pay of the decree debt or he is suffering from any physical infirmity or mental disorder. He has not expressed his willingness to move the Insolvency Court to get declared him as insolvent. Decree holder is represented and he is ready to pay Jail Batta. Though he submitted he is ready to pay Rs.15,000/- no amount is paid. However JD is given 2 weeks time to make the payment till that he is handed over to the custody of court officer for 14 days.” A reading of the impugned order makes it clear that the mandatory procedure prescribed under Order XXI Rule 40 has not been followed by the court below before passing the impugned Ext.P-3 order. Order XXI Rule 40 provides as follows: ::3:: O.P(C).No.443 Of 2018 “ O.XXI Rule 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 of a decree for the payment of money, the Court shall proceed 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 of showing cause why he should not be committed to the civil prison. (2) Pending the conclusion of the inquiry under sub-rule (1) the Court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required. (3) Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of Section 51 and to the other provisions of this Code, make an order for the detention of the judgment-debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest: Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention leave the judgment- debtor in the custody of officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied. (4) A judgment-debtor released under this rule may be re-arrested. (5) When the Court does not make an order of detention under subrule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release.” 4. The matters in relation to the procedures to be followed on appearance of a judgment debtor before the court are clearly mentioned in the judgment in Nizar v. Indus Bank Limited, reported in 2016 (1) KLT ## 43 para 3 which reads as follows: “3. If a judgment debtor fails to appear in person or through counsel in response to the notice issued under Order 21 Rule 37 C.P.C., he cannot be set ex parte. No such procedure is contemplated by C.P.C. The court can set a party ex parte only if it can proceed further in his absence. Rule 37(2) ::4:: O.P(C).No.443 Of 2018 prescribes that when a judgment debtor fails to respond to the notice issued under Rule 37(1) the court shall issue an arrest warrant against him, which is only to secure his presence for the enquiry contemplated in Rule 40(1) and not for non-payment of the decree debt. But he is at liberty to surrender before the court before he is arrested. When he is arrested and produced, or surrenders before the court, Rule 40 comes in to play. As the court has not proceeded to the stage of enquiry regarding his means to pay the debt, he has not lost his right to show cause why he should not be detained in jail for nonpayment of the debt. Even if he does not show cause, he cannot be immediately ordered to be detained in jail unless the decree holder proves that he has the means to pay the debt. No means is pleaded or not, the court has to conduct an enquiry, in which the decree holder should adduce evidence to establish his allegation of the judgment debtor having the means to pay the debt. Sub-rule (2) of Rule 40 gives discretion to the court to release the latter on his furnishing security for his appearance or to detain him in the custody of an officer of the court during the pendency of the enquiry. The detention under this sub-rule is not for non payment of the debt, but only to ensure his presence during the enquiry. The enquiry contemplated in Rule 40(1) is mandatory. A bald statement in the decree holder's pleadings and evidence that the debtor has properties or income to pay the debt is not sufficient. If, on enquiry, the court reaches the conclusion that the debtor is liable to be detained for non payment of the decree debt, he shall be caused to be arrested so that he may be detained. His arrest is necessary only if he is not already under arrest. This is the procedure prescribed in Rule 40 C.P.C.” 5. The legal principles which regulates the aspects for ordering the arrest and detention of judgment debtor in civil prison on the ground that he has means to pay the decretal debt has been delineated by this Court in the judgment in Karunakaran Pillai v. Joseph, reported in 1976 KLT 433, Jayadev Singh A.K. v. A.K.Majeeth , reported in 2010 (2) KHC 730 and Abraham v. Maharashtra Apex Corporation Ltd., reported in 2011 (3) KLT 15 and Jolly George Varghese v. Bank of Cochin , reported in 1980 (2) SCC 360 = AIR 1980 SC 470, etc. A reading of the impugned order makes it clear like the day light that none of the legal ::5:: O.P(C).No.443 Of 2018 principles enunciated in the above said well settled rulings have been adverted to or referred to before rendering such a drastic order. 6. No doubt, the provisions contained in the Code of Civil Procedure authorises detention of the judgment debtor in civil prison but only after following rigorous procedure as contemplated in those provisions. It is by now well established that the right to life and right to personal liberty as guaranteed under Article 21 of the Constitution of India cannot be denied to anyone, except, in accordance with the procedure established by law, which is just, fair and reasonable. This position of Constitutional law is crystal clear from a line of decisions starting from Maneka Gandhi v. Union of India, reported in (1978) 1 SCC 248. Therefore, if the rigorous procedures and provisions contained in the Code of civil Procedure for arrest and detention of a person are not complied with in substance and spirit, then it would amount to depriving of liberty of a person on the basis of a procedure, which cannot be said to be just, fair and reasonable. 7. In this view of these aspects, the matter requires a remit to re-consider the entire matter afresh keeping in view the legal principles laid down in the aforecited rulings. For such a remit, there is no necessity to issue notice to the respondent as those parties would be heard by the execution court at the time of passing fresh order after ::6:: O.P(C).No.443 Of 2018 remit. For facilitating such a remit, the impugned Ext.P-3 order will stand set aside. The court below will hear both parties and will take a decision afresh in the matter taking into account the legal principles laid down in the aforecited judgments and also bearing in mind that such a drastic order like the one involving arrest and detention of a judgment debtor in civil prison has the direct and inevitable consequence of depriving his personal liberty and such deprivation of personal liberty should only be on the basis of procedure, which is just, fair and reasonable, etc. 8. Petitioners have also submitted that the Execution Petition itself is not maintainable inasmuch as the Execution Petition has been set in motion on the basis of a power of attorney said to have been executed by the decree holder is not sufficiently stamped. It is for the petitioner to urge all his contentions before the Execution Court, consequent to the remit and this Court need not detain itself for any consideration on the merits of the rival contentions of the parties, as all those matters are to be urged for the consideration of the Execution Court, consequent to the remit. With these observations and directions, the aforecaptioned Original Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.