' This matter relates to execution of a decree passed against the petitioner in favour of the respondent by the learned District Judge, Mirpur on October 10, 1982 for a sum of Rs.2,40,632.25.
2. On an application for execution of the decree, the executing Court issued notice to the judgment-debtor-petitioner. He could not be served and ultimately the executing Court issued a warrant of his arrest and detention. The warrant was later withdrawn on an application of the petitioner. On his appearance before the Court, the petitioner submitted his objections to the execution application. Subsequently, the petitioner again absented himself from the proceedings, whereupon warrant of his arrest and detention in civil prison was issued by the executing Court.
This order is assailed in the present petition.
3. The decree sought to be executed against the petitioner is a money decree. The general methods pertaining to enforcement of execution are described under section 51 of the Civil Procedure Code. These are five different measures and one of the measures listed under clause (c) postulates execution of decree by arrest and detention in prison of the judgment-debtor.
Nevertheless, where the decree is sought to be executed by arrest and detention in prison of the judgment-debtor, there is a condition precedent laid down under the proviso which postutales that the Court shall not order the execution by detention in prison unless, after giving the judgment- debtor an opportunity of showing cause , as to why he should not be committed to prison, the Court records its satisfaction on three conditions described therein. The scheme of law described to enforce execution by arrest and detention in prison, obviously, suggests that liberty of the judgment-debtor was not to be curtailed unless it was satisfied that the conditions justifying the said satisfaction of the Court, were available in the case. Moreover, on satisfaction of presence of the conditions, the judgment-debtor was entitled to a show-cause notice against his arrest and detention in civil prison. The aforesaid salutary provisions made in the Code, obviously, were made in consideration of the right of liberty of citizens. Such restriction was not enforceable in either of the other methods to enforce execution of a decree.
4. Here it is relevant to state that arrest of judgment-debtor conceived by the scheme of law was of two types. A judgment-debtor may be arrested only to bring him before the Court to enforce the execution of the decree. Such an arrest was considered imperative for his personal presence before the Court to enforce execution of the decree and for no other purpose. The other kind of arrest and detention in civil prison of the judgment-debtor was conceived to enforce the execution as an ultimate action for satisfaction of the decree. In present case, it appears that the warrant of arrrest and detention in civil prison was not issued to secure presence of the judgment-debtor to proceed with the execution but to enforce the execution itself as a mode of execution, to satisfy the decree.
5. It is already noticed elsewhere that the executing Court, keeping in view the provisions of Section 51 of the Code, allowed the judgment-debtor to submit his objections to the execution application.
The judgment-debtor, in compliance with the direction of the Court, submitted his objections on August 9, 1989 and prayed for dismissal of the application. He raised various legal objections in his defence.
6. There is no denying the fact that the executing Court was empowered to enforce execution of the decree by arrest and detention in prison as prescribed under section 51, C.P.C. However, when the execution was to be enforced by arrest and detention in civil prison of the judgment-debtor, it was imperative to record reasons in compliance with the provisions of section 51 read with the provisions of Order XXI, Rules 37 and 40 of the Code. Unless the prescribed procedure was followed, any action in the shape of the impugned order was illegal. This view finds support from a Division Bench judgment of Allahabad High Court recorded in AIR 1955 Allahabad 402. The observation is:- - "Before the Court can issue a warrant of arrest or a notice to the judgment-debtor under O.XXI, R.
37, it has to see that the judgment-debtor is liable to arrest in pursuance of the application for execution. This means that the nature of the decree should be such that it can be executed by the arrest of the judgment-debtor and that such circumstances exist that an order of arrest can be made against the judgment-debtor, in case the Court was satisfied of those circumstances. Such circumstances are what are mentioned in clauses (a) to (c) to proviso to section 51. The existence of such a circumstance becomes one of the conditions to govern the liability of the judgment- debtor to arrest. This necessarily leads to the conclusion that the existence of such a circumstance should be alleged whether in the execution application itself or in a separate application or affidavit which should accompany the usual tabular execution application. Unless such a circumstance is alleged the Court cannot think of it, and in the absence of it the Court cannot take action under O.XXI, R.37 or issue notice to the judgment-debtor why he should not be arrested.
' The procedure to be followed, when the judgment-debtor appears in Court, should be according to what is laid down in R.40 of O.XXI. The judgment-debtor may or may not file any written reply. It is for the decree-holder to lead his evidence in the presence of the judgment-debtor. Such evidence should be in support of his application for execution and should have reference to the grounds which, according to the decree-holder, would justif), the arrest of the judgment-debtor, in execution of the decree, and which should be one of the grounds mentioned in clauses (a) to (c) to proviso to Section 51. It is when the decree-holder has led 'prima facie' evidence in support of his application that the judgment-debtor has to be given an opportunity of showing cause why he should not be committed to the civil prison."
' In an identical case, Mr. Justice Panchapakesa Ayyar, J. Observed in AIR 1956 Madras 580 as:-- "A bald order for arrest will violate the mandatory provisions of Section 51 and will affect the liberty of a person and his fundamental rights. The law clearly requires the Court to give the judgment- debtor an opportunity of showing cause why he should not be committed to prison. Even if he does not appear and show cause, the Court should record its reasons in writing for ordering his arrest, and the usual reason in such cases will be that it is satisfied that the judgment-debtor has or has had, since the date of the decree, means to pay the amount of the decree or some substantial part thereof and has refused or neglected to pay the same.
' Whenever a Court does not act on the first failure to appear in pursuance of a notice, but issues another notice, it should wait and see whether the person appears in pursuance of the second notice; it cannot act on his absence in pursuance of the first notice. But, whether the judgment- debtor appears or not, the Court has to record the reasons for ordering his arrest. It is not for the judgment-debtor to prove the negative, but for the decree-holder to prove the positive, and for the Court to find in favour of the contention of the decree-holder and to record its reasons for ordering arrest."
' In A.K. Subramania Chettiar's case, AIR 1957 Madras 777, Mr. Justice Ramaswami J. Observed as:-- "Where a decree-holder presses for arrest of the judgment-debtor, the Court cannot except as provided by the provisos to Section 51, C.P.C., compel the decree-holder to proceed against his property or to accept payment by instalents. The Court is to follow the procedure prescribed under Order )0(I, Rule 40, C.P.C. And then find if it is satisfied on the evidence that the instant case before it falls within any of the clauses of the provisos then the Court has to record its reasons in writing that the judgment-debtor should be committed to prison for one of the five reasons set out therein.
If the cause is insufficient the Court is bound to order arrest! If on the other hand the decree-holder fails in the discharge of his burden to prove that the circumstances specified in the section exist, the Court is equally bound to reject the application."
In present case, it is evident from the proceedings of the executing Court that the requisite conditions listed under Section 51 of the Code were neither inquired into nor were accordingly shown present. The impugned order being violative of conditions as contemplated under law, was obviously derogatory to the mandatory provisions.
7. It may be said that on the previous occasion, i.e. April 20, 1989, the requisite order was passed by the executing Court and the impugned order was passed next, as supplemental to the previous order. An answer to the aforesaid question may be that the previous order was equally bad in law for the reason that the requisite conditions envisaged under Section 51, Civil Procedure Code, were not shown to have been satisfied as no inquiry was made to that effect. Moreover, even if for arguments' sake it is accepted that the previous order was passed in compliance with the aforesaid provisions of law, even then it was essential for the executing Court to pass the impugned order in compliance with the provisions of law. This has not been done by the subordinate Court. Therefore, mere reference to the previous order was not enough to satisfy the requisite legal conditions. This view finds support from AIR 1949 Madras 470. The relevant observation is as:-- "Court would be acting without jurisdiction in ordering the arrest of a judgment-debtor without recording its reasons under Section 51, regarding its being satisfied that the judgment-debtor had rendered himself liable to be arrested and sent to a jail on any of the grounds mentioned in Section
51. The reasons must be given every time the judgment-debtor is ordered to be arrested and in every proceeding where he is ordered to be arrested even if it is on the same day; for, cases differ and much depends on lapse of time also. The fact that in the previous order for arrest which had not been taken advantage of or carried out, full reasons had been given, does not dispense with this requirement when a fresh application is made some months later."
8. The provisions of Order XXI, Rule 37, C.P.C. Are to be applied in conjunction with the provisions of Section 51. When the judgment-debtor was to be committed to civil prison to enforce execution of a money decree, it was further necessary to proceed against him in compliance with the provisions of Rule 40 as well. In present case, the impugned order was not shown to have been passed in compliance with the aforesaid provisions of law. Moreover, the executing Court even failed to apply its mind to the objections presented by the judgment-debtor against the application for execution of the decree. This indicates that the executing Court passed the impugned order hurriedly, without applying its mind to the merits of the proposition under consideration. The order is obviously violative of the provisions of law, as such illegal. It is, therefore, set aside and the case is remanded for its disposal in the light of the aforesaid observations.