Mat.Appeal (Exe) No.4/2018

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI MONDAY, THE 23RD DAY OF JULY 2018 / 1ST SRAVANA, 1940 MA (EXE.).No. 4 of 2018 AGAINST THE ORDER DATED 11.06.2018 IN E.P.NO.28/2016 IN OP 187/2011 of FAMILY COURT, CHAVARA APPELLANT/3RD JUDGMENT DEBTORS/3RD DEFENDANT LEELAKUMARI, AGED 60 YEARS, W/O. BHARGAVAN, NEDIYATHVEETTIL (LEELA BHAVANAM), SOORANADU NORTH, KUNNATHUR, KOLLAM - 690 540. BY ADVS.SRI.K.G.CLEETUS SRI.N.V.PAUL RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTORS 1 & 2/PLAINTIFF & DEFENDANTS 1 & 2: ## 1. SHIKHA, AGED 29 YEARS, D/O. VANAJA, NOW RESIDING AT KUMAR BHAVANAM, S.V.MARKET, P.O.KARUNAGAPPALLY, KOLLAM - 690 518. ## 2. BHAGYAHITH, AGED 37 YEARS, S/O. BHARGAVAN, NEDIYATHVEETTIL (LEELA BHAVANAM), SOORANADU NORTH, KUNNATHUR, KOLLAM - 680 540. ## 3. BHARGAVAN, AGED 67 YEARS, BHARGAVAN, NEDIYATHVEETTIL (LEELA BHAVANAM), SOORANADU NORTH, KUNNATHUR, KOLLAM - 680 540. (NOW DETAINED IN CIVIL PRISON, POOJAPPURA CENTRAL JAIL, THIRUVANANTHAPURAM) R3 BY ADV. SRI.K.P.POULOSE R1 BY ADV. SRI.M.R.SASITH THIS MAT APPEAL (EXECUTION) HAVING BEEN FINALLY HEARD ON 18-07-2018, THE COURT ON 23-07-2018, DELIVERED THE FOLLOWING: **''CR''** ## **C.K.ABDUL REHIM &** ## **R.NARAYANA PISHARADI, JJ.** *************************** Mat.Appeal (Exe) No.4 of 2018 -----------------------------------------Dated this the 23[rd] day of July, 2018 ## **JUDGMENT** ## **R.Narayana Pisharadi,J** Reason is the heartbeat of every conclusion. Without the same, it becomes lifeless (Raj Kishore Jha v. State of Bihar : AIR 2003 SC 4664). 2. An execution court has ordered detention of a judgment debtor aged 60 years in civil prison for a period of three months in execution of a decree for payment of money. The legality and propriety of that order is challenged in this appeal. 3. The appellant is the third respondent in O.P.No.187 of 2011 on the file of the Family Court, Kollam. It is a case filed by the first respondent herein against her husband and 2 Mat.Appeal (Exe) No.4/2018 his parents for return of the gold ornaments belonging to her or the value of the ornaments. O.P.No.187 of 2011 was decreed on 26.08.2015 by the Family Court, Kollam allowing the first respondent to realise from them 296 grams of gold ornaments or their market value. Thereafter, the first respondent/decree holder filed E.P.No.28 of 2016 in the Family Court, Chavara for execution of the aforesaid decree by sale of the property belonging to the judgment-debtors and also by the arrest and detention of the first and the second judgment-debtors in civil prison. During the pendency of the execution proceedings, the first respondent filed E.A.No.33 of 2017 for issuing warrant of arrest against the first and the second judgment-debtors, who are her husband and his father, and for their detention in civil prison. The execution court issued notice to the first and the second judgment-debtors under Order 21 Rule 37 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the 3 Mat.Appeal (Exe) No.4/2018 Code'). Though the first and the second judgment-debtors entered appearance, they did not file any objection or counter statement in E.A.No.33 of 2017. The decree holder was examined as PW1 but no evidence was adduced by the first and the second judgment-debtors. After closing the evidence of the decree holder on 28.03.2018, the execution court adjourned the case to 21.04.2018 for the evidence of the judgment-debtors. On 21.04.2018, the judgmentdebtors were absent and there was no representation for them and therefore, the court closed the evidence. On the same day, the execution court passed the following order: _“Heard. It is found that JD has sufficient means and he is wilfully evading payment. Hence issue arrest warrant to JD.”_ On 11.06.2018, the second judgment-debtor was arrested and produced before the execution court. Then, the court passed the following order: Mat.Appeal (Exe) No.4/2018 4 _“2[nd] Judgment debtor was arrested and produced. No amount paid. Hence 2[nd] Judgment debtor is sent to Civil prison for 3 months. EA.68/18 allowed. Rs.4,50,000/in the RD Account of 3[rd] judgment debtor with KSFE, Chakkuvally branch ordered to be attached. Issue attachment order. For return of attachment report on 30.06.2018.”_ The appellant, who is the third judgment-debtor and who is the wife of the second judgment-debtor, has filed this appeal challenging the aforesaid order of the execution court sending her husband to civil prison for a period of three months. 4. We have heard the learned counsel for the appellant and also the first respondent/decree holder and perused the records in the execution proceedings. 5. Learned counsel for the appellant has contended that the second judgment-debtor was ordered to be detained in 5 Mat.Appeal (Exe) No.4/2018 civil prison by the execution court without a proper finding regarding his means to pay the decree debt and his neglect to pay the same. Learned counsel would also contend that the execution court had already proceeded against the property of the judgment debtors and in the absence of any special circumstances, the court should not have ordered execution of the decree by the arrest and detention of the judgment debtors in civil prison. Per contra, learned counsel for the first respondent/decree holder would contend that the first and the second judgment-debtors did not file any objection to the application E.A.No.33 of 2017 and that they did not raise any plea of no means and therefore, the execution court was perfectly justified in passing the impugned order. 6. We shall first deal with the contention regarding the legality of initiation of simultaneous proceedings for execution of the decree. Order 21 Rule 30 of the Code reads Mat.Appeal (Exe) No.4/2018 6 as under: _”30. Decree for payment of money - Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment - debtor, or by the attachment and sale of his property, or by both."_ Order 21 Rule 21 of the Code states as follows: _“21. Simultaneous execution.- The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor."_ A bare perusal of the provision contained in Order 21 Rule 30 of the Code would reveal that simultaneous execution of a decree for payment of money, including a decree for the payment of money as the alternative to some other relief, against the property and person of the judgment-debtor is permissible. Mat.Appeal (Exe) No.4/2018 7 ## 7. In **Shyam Singh vs Collector, District Hamirpur :** **1993 Supp (1) SCC 693** , the Apex Court has held as follows: _“It has been said the difficulties of a litigant "begin when he has obtained a decree". It is a matter of common knowledge that far too many obstacles are placed in the way of a decree holder who seeks to execute his decree against the property of the judgment debtor. Perhaps because of that there is no statutory provision against a number of execution proceedings continuing concurrently. Section 51 of the Code gives an option to the creditor, of enforcing the decree either against the person or the property of the debtor; and nowhere it has been laid down that execution against the person of the debtor shall not be allowed unless and until the decree holder has exhausted his remedy against the property”._ (emphasis supplied) Therefore, there can be no doubt with regard to the position of law that the decree holder is entitled to simultaneously proceed against the person and property of the judgment Mat.Appeal (Exe) No.4/2018 8 debtor. 8. Of course, the court has the discretion under Order 21 Rule 21 of the Code to refuse simultaneous execution and to allow the decree holder to avail himself of only one of the modes of execution at a time. The object of the provision contained in Order 21 Rule 21 of the Code has been explained by the Apex Court in **Shyam Singh** 's case (supra) as follows: _“It is true that the proverbial law's delay is more frequently and strikingly exemplified in execution proceedings than even in the initial dispute, and as such, courts have to aid the creditor in realising the dues from the debtor. But at the same time in the special facts and circumstances of a particular case, the court can direct the decree holder or the creditor not to put any property on sale if by the mode already opted by the decree holder or the creditor, the amount due has been realised or likely to be realised without any further delay”._ 9 Mat.Appeal (Exe) No.4/2018 Therefore, in a specific case, if the judgment-debtor is able to convince the court that the decree holder can realise the decree debt without delay by adopting only one of the modes of execution of the decree, then the Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor. It is to be remembered that the power under Order 21 Rule 21 of the Code to refuse simultaneous execution of a decree is discretionary. The discretion has to be exercised by the court considering the facts and circumstances of each case. The object of the provision contained in Order 21 Rule 21 of the Code is to prevent harassment of the judgment-debtor by the decree holder under the guise of execution of the decree. 9. In the present case, there are no special circumstances pointed out by the appellant which would enable the execution court to exercise its discretion in favour 10 Mat.Appeal (Exe) No.4/2018 of the judgment-debtors to refuse execution at the same time against the person and property of the judgmentdebtors. 10. We shall now examine the legality and propriety of the order passed by the execution court for detention of the second judgment-debtor in civil prison. Arrest and detention of the judgment debtor in prison is one of the modes of execution of a decree recognised under Section 51 of the Code. Clause (b) of the proviso to Section 51 of the Code states 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 to prison, the Court, for reasons recorded in writing, is satisfied 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 Mat.Appeal (Exe) No.4/2018 11 refused or neglected to pay the same. 11. In Ram Narayan Agarwal v. State of U.P (AIR 1984 SC 1213), it has been held that in the Indian conditions the process of arrest and detention of a judgment debtor or a defaulter to enforce payment of the amount due from him is not altogether unreasonable. 12. Sunitha v. Ramesh (2010 (3) KLT 501) was a case in which an estranged wife claimed the cash and value of the ornaments and articles entrusted with the husband at the time of marriage. On execution proceedings initiated by the wife, the husband took a plea of no means. A Division Bench of this Court found that a plea of 'no means' would not help the husband in so far as clause (c) of the proviso to Section 51 of the Code enables the Court to execute the decree for payment of money by detention in prison if it is satisfied that "the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account". In the present 12 Mat.Appeal (Exe) No.4/2018 case, it is not the husband but the father of the husband who is arrested and detained in prison. Therefore, clause (c) of the proviso to Section 51 of the Code and the dictum laid down in **Sunitha** 's case have no application to the instant case. 13. A close reading of Clause (b) of the proviso to Section 51 of the Code reveals that before passing an order for detention of the judgment-debtor in prison, the Court, for reasons recorded in writing, shall be satisfied 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 that he refuses or neglects or has refused or neglected to pay the same. The burden of proving the means of the judgment-debtor to pay the decree debt is on the decree holder. If there is prima facie material on record regarding the means of the judgment debtor, it is for the judgment debtor to prove otherwise because he is in 13 Mat.Appeal (Exe) No.4/2018 a better position to know his assets. On a reading of the proviso to Section 51 of the Code it is evident that the court shall be not only satisfied with regard to the means of the judgment-debtor to pay the decree debt or a substantial part of it but it has also to record in writing the reasons for reaching such satisfaction. 14. In the present case, the order dated 21.04.2018 passed by the execution court shows that the court was satisfied that the judgment-debtor had sufficient means to pay the decree debt and that he had wilfully evaded payment of the same. However, the court has not recorded in writing the reasons for reaching the said conclusion. True, it is a case in which the first and the second judgmentdebtors did not file any objection to the application E.A.No.33 of 2017. It appears that they did not raise any plea of no means. It is also true that they did not adduce any evidence during the enquiry in the execution petition. 14 Mat.Appeal (Exe) No.4/2018 However, it will not enable the court to dispense with the requirement under the proviso to Section 51 of the Code to record reasons in writing for arriving at a conclusion regarding the means of the judgment-debtor and his refusal or neglect to pay the decree debt. It is a case in which the decree holder was examined as PW1 and she has given evidence regarding the means of the first and the second judgment-debtors to pay the decree debt. She was also cross-examined by the judgment-debtors. The execution court has not stated anything in its order dated 21.04.2018 regarding the evidence of PW1 or the challenge made by the judgment-debtors to such evidence in the cross examination. In short, the order dated 21.04.2018 passed by the execution court is not a speaking order stating the reasons for arriving at the conclusion regarding the means of the the judgment-debtors to pay the decree debt. 15. It is incumbent upon the courts to pass speaking 15 Mat.Appeal (Exe) No.4/2018 and reasoned orders. Giving reasons for conclusions is an essential element of administration of justice. Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached (See Krishna Swami v. Union of India:AIR 1993 SC 1407). Judicial orders must be supported by reasons recorded in them. While deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation of the court to record reasons. Giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice-delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. Recording of reasons for a decision is an 16 Mat.Appeal (Exe) No.4/2018 essential attribute of judicial and judicious disposal of a matter by a court. It is the only indication to know about the manner and quality of the exercise undertaken. Reasons shall be given for reaching a conclusion so as to reflect application of mind by the court. Reason introduces clarity in an order. Reasons substitute subjectivity with objectivity. Absence of reasons renders an order indefensible/ unsustainable particularly when the order is subject to further challenge before a higher forum. Reasons ensure transparency and fairness in decision making (See Union of India v. Ibrahim Uddin : (2012) 8 SCC 148). 16. The order dated 21.04.2018 passed by the execution court is erroneous for another reason also. This order does not disclose whether arrest warrant was ordered to be issued against the first judgment-debtor or the second judgment-debtor or against both of them. The order also does not disclose whether the finding regarding the means 17 Mat.Appeal (Exe) No.4/2018 to pay the decree debt is made by the court with regard to the first judgment-debtor or the second judgment-debtor or both of them. 17. Once it is found that the order dated 21.04.2018 passed by the execution court cannot be sustained, it follows that the order dated 11.06.2018 passed by that court ordering detention of the second judgment-debtor in civil prison will have no legs to stand on. 18. In the aforesaid circumstances, we find that the orders dated 21.04.2018 and 11.06.2018 passed by the execution court issuing arrest warrant against the second judgment-debtor and ordering his detention in civil prison cannot be sustained in the eye of law. If the execution court is satisfied with regard to the requirements under Clause (b) of the proviso to Section 51 of the Code, it is mandatory that it shall record the reasons in writing for reaching such conclusion. 18 Mat.Appeal (Exe) No.4/2018 19. Consequently, we allow the appeal and set aside the orders dated 21.04.2018 and 11.06.2018 passed by the Family Court, Chavara in E.P.No.28 of 2016, as far as they relate to the arrest and detention of the second judgmentdebtor in civil prison. The Family Court/execution court shall consider the application E.A.No.33 of 2017 afresh and dispose of it in accordance with law. No costs in the appeal. (sd/-) ## **C.K.ABDUL REHIM, JUDGE** (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr