Anil Kumar v. Divya (OP(C) No. 2422 of 2022), High Court of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 15[TH] DAY OF JUNE 2023 / 25TH JYAISHTA, 1945 OP(C) NO. 2422 OF 2022** **AGAINST THE ORDER DATED 30/09/2022 IN E.P.NO.2/2017 IN O.S.NO.** **9/2014 OF SUB COURT,ATTINGAL** ## **PETITIONER/JUDGMENT DEBTOR/DEFENDANT:** ANILKUMAR AGED 47 YEARS S/O. SASIDHARAN, THEKKUMKARA VEEDU, KUDAVOOR P.O., MELTHONNACKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT., PIN - 695313 BY ADV J.JAYAKUMAR ## **RESPONDENT/DECREE HOLDER/PLAINTIFF:** DIVYA AGED 36 YEARS W/O. SUNIL, UTHRAM, KATTAYIKONAM, AYIROORPPARA VILLAGE, THIRUVANANTHAPURAM DISTRICT., PIN - 695584 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C)No.2422 of 2022 2 **CR** ## **JUDGMENT** The execution court instead of proceeding against the property, which is under attachment, initiated coercive steps against the judgment-debtor by issuing warrant of arrest under Rule 38 of Order XXI C.P.C.. Consequently, the judgment-debtor was arrested and produced before the court and subsequently released on bond due to non-payment of subsistence allowance. The principal question came up for consideration is, whether it is permissible to take coercive steps under Rule 37 and 38 of Order XXI C.P.C. by issuing warrant of arrest against the judgment-debtor for his detention in civil prison, when his property is under attachment either at the trial stage or at the execution stage ? Can the court issue warrant of arrest at the execution stage to procure the presence of judgment-debtor in execution and under what circumstances such coercive steps can be initiated ? 2. At the execution of money decree, a warrant of arrest can be issued under Rule 38 of Order XXI C.P.C. O.P.(C)No.2422 of 2022 3 only when it is found that it is not possible to recover the decree amount or any part thereof by resorting to other methods of execution under Order XXI C.P.C.. The measures/methods of execution which can be adopted in execution of a decree should always be in accordance with the mandate under Section 51 C.P.C. which was carefully worded and drafted by giving first option for sale of movable or immovable property and second option probably, the last option in a money decree by arrest and detention, which reads as follows: ## **51.Powers of Court to enforce** ## **execution.-** Subject to such conditions and limitations as may be prescribed the Court may, on the application of the decree-holder, order execution of the decree- (a) by delivery of any property specifically decreed ; (b) by attachment and sale or by sale without attachment of any property ; (c) by arrest and detention in prison for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that Section; (d) by appointing a receiver ; or (e) in such other manner as the nature of the relief granted may require : Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed O.P.(C)No.2422 of 2022 4 to prison, the Court for reasons recorded in writing, is satisfied- - (a) that the judgment debtor, with the object or effect of obstructing or delaying the - execution of the decree, (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or (c) that the decree is for a sum for which the judgment-debtor was bound in fiduciary capacity to account. Explanation: In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.” (emphasis supplied) 3. The entire scheme of Section 51 C.P.C. clearly postulates the procedure to be taken one after another in execution of a decree. The clause (b) to Section 51 C.P.C. specifies the procedure to be applied in execution of a decree for payment of money by the sale of property either with attachment or without attachment. The O.P.(C)No.2422 of 2022 5 subsequent provision, clause (c) deals with yet another method of execution by arrest and detention of judgmentdebtor. It was included as a succeeding provision just after the normal method of execution of a money decree by the sale of property of judgment-debtor under clause (b), presumably as a precaution not to deprive the personal liberty of a person guaranteed under Article 21 of the Constitution, unless there is sufficient grounds for his arrest and detention in civil prison. Hence, it is not permissible to bypass the normal method of execution by sale of property under clause (b) so as to invoke clause (c) for the arrest and detention of judgment-debtor. The court may order execution of a decree by adopting clauses (a) to (e) attached to the main Section viz.,(a) by delivery of any property specifically decreed (b) by attachment and sale or by sale without attachment of any property (c) by arrest and detention in prison for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that Section (d) by appointing a receiver or (e) in such other manner as the nature of the relief granted may require. The entire scheme of Section 51 C.P.C. hence O.P.(C)No.2422 of 2022 6 would show that the court cannot exhaust the remedy under clause (c) by issuing warrant of arrest against the judgment-debtor without exhausting clause (b) of Section 51 by the sale of movable or immovable property, if any available. The principle behind it is succinctly summarized by the Apex Court in **Jolly George Varghese and Another v. The Bank of Cochin [(1980) 2 SC 360]** . The noble principle under Article 21 of the Constitution that no person shall be deprived of his life or personal liberty except according to the procedure established by law is for protecting a person from being arrested and detained in prison unnecessarily and it should be always in accordance with any of the procedure established by law, which stands for and requires strict compliance of its mandate and procedure. There cannot be any kind of dilution since it is guaranteed under the Constitution, but with the abovesaid exception, which requires strict adherence of both the mandate and procedure and conditions to be satisfied under any of the law in force so as to deprive the personal liberty of a particular person. In short, no warrant of arrest or coercive steps can be initiated against the judgment-debtor, when a O.P.(C)No.2422 of 2022 7 property is available for sale by way of an attachment before judgment or at the execution. The availability of any other method of execution of decree of money either in part or in whole would exclude the extreme steps of execution by arrest and detention till such property was completely proceeded against or the property has become not available for execution for any other valid reasons. When other alternatives are available by way of immovable property or other properties which are under attachment and available for execution, there may not be any occasion to resort to clause (c) to Section 51 overriding clause (b). Further, the proviso attached to Section 51 C.P.C. deals with the restrictions imposed in issuing a warrant of arrest, which can be issued on satisfaction of clause (a), (b) or (c) attached to that proviso and would come into play only when clause (c) to Section 51 was taken as a method of execution. Hence, it is not permissible to issue warrant of arrest at the execution of a money decree under the premise of proviso attached to Section 51 C.P.C. so as to prevent likelihood of absconding or leaving the local limits of jurisdiction with the intent either to obstruct or to delay the O.P.(C)No.2422 of 2022 8 execution of the decree at the stage when the matter falls under clause (b) of Section 51 C.P.C.. Necessarily, there is no scope for issuing a warrant of arrest at the stage of clause (b) i.e. the sale of movable or immovable property of judgment-debtor and till the completion of that stage, no coercive steps either by issuance of warrant of arrest or detention in prison can be resorted to. Further, a warrant of arrest that can be issued for furnishing security or to show cause at the trial stage under Rule 1 of Order XXXVIII C.P.C. cannot be extended to in an execution proceedings of a decree for payment of money, except as stated above. In short, in order to exhaust the method of execution by arrest and detention of the judgment-debtor, it must be satisfied as a condition precedent that no other method of recovery of the decree amount in execution is available. The mandate of issuance of notice and the doctrine of 'no means' and 'lack of bonafides' though relevant in the determination of issue under Rule 37 of Order XXI C.P.C. r/w proviso attached to Section 51 C.P.C., may not have any application with respect to a property which is available for attachment and sale, which would otherwise fall under O.P.(C)No.2422 of 2022 9 clause (b) of Section 51 C.P.C.. In that stage or during the pendency of procedure under clause (b) for the sale of movable or immovable property, no warrant of arrest against the judgment-debtor can be issued. 4. In the instant case, the immovable property belonged to the judgment-debtor is under attachment and without proceeding against the said property under clause (b) of Section 51 C.P.C. for its sale, coercive steps under clause (c) was initiated for the arrest and detention of the judgment-debtor and consequently a warrant was issued and in turn it was executed. The judgment-debtor was arrested and produced before the court and was released on bond simply on the reason that no subsistence allowance was deposited by the decree holder. The entire proceedings initiated under clause (c) of Section 51 C.P.C. hence is vitiated and liable to be rectified by exercising the extra ordinary jurisdiction under Article 227 of the Constitution. Hence, the impugned order issuing warrant of arrest against the judgment-debtor and the entire proceedings initiated under Rule 37 and 38 of Order XXI C.P.C. will stand set aside. The bond executed will stand cancelled. The O.P.(C)No.2422 of 2022 10 execution court is hereby directed to proceed against the property under attachment or any other property available for the recovery of the amount due either in part or in full and coercive steps can be initiated for arrest and detention only if any balance amount is found to be due after exhausting clause (b) of Section 51 C.P.C.. The O.P.(C) will stand allowed accordingly. Sd/- **P.SOMARAJAN JUDGE** sv O.P.(C)No.2422 of 2022 11 ## **APPENDIX OF OP(C) 2422/2022** PETITIONER'S EXHIBITS Exhibit1 TRUE COPY OF THE DECREE DATED 19/3/2015 IN O.S. NO. 9/2014 OF SUB COURT, ATTINGAL Exhibit P-2 TRUE COPY OF E.P. NO. 2/2017 IN O.S. NO. 9/2014 OF SUB COURT, ATTINGAL . ExhibitP-3 TRUE COPY OF E.A. NO. 63/2017 IN E.P. NO. 2/2017 IN O.S. NO. 9/2014 FILED BY THE CLAIMANT SATHEESAN BEFORE SUB COURT, ATTINGAL Exhibit P-4 TRUE COPY OF THE ORDER DATED 30/9/2022 IN E.A. NO. 63/2017 IN E.P. NO. 2/2017 IN O.S. NO. 9/2014 OF SUB COURT, ATTINGAL Exhibit P-5 TRUE COPY OF ORDER DATED 30/9/2022 IN E.P. NO. 2/2017 IN O.S. NO. 9/2014 OF SUB COURT, ATTINGAL . Exhibit P-6 CERTIFIED COPY OF THE SELF BOND EXECUTED BY THE PETITIONER BEFORE THE SUB JUDGE'S COURT, ATTINGAL IN E.P.NO. 2/2017 IN O.S. NO. 9/2014 /TRUE COPY/ PS TO JUDGE