Proceeding against the person as well as the property in the process of execution of a decree is almost a rarity. Even in the limited situations, which permit such a course, the discretion is to be used, more to refuse it, than to accord permission. The language of Rule 21 of Order XXI C.P.C. is clear on this aspect. It reads as under:
"21. Simultaneous execution: The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor."
7. Whatever may be the permissibility of simultaneous execution against the property and the judgment-debtor, in other kinds of decrees, when it comes to the question of execution of money decrees, proviso to Section 51 C.P.C. imposes several restrictions. In the body of Section 51 C.P.C., the 5 modes, through which a decree can be executed, depending on its purport, are mentioned. The proviso deals with the money decrees, in the context of detention of the judgment-debtor in prison. It reads as under:
"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 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 a 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."
8. It is only after a specific plea raised by the decree-holder touching on the circumstances referred to in Clauses (a), (b) and (c) is proved to the satisfaction of the Court and after affording an opportunity to the judgment debtor that the detention can be ordered. The fact that the detention of the judgment-debtor is prayed for with the simultaneous execution against property, does not relieve the executing Court of its obligation to follow the procedure stipulated under Section 51 C.P.C.
9. In A.K. Subrahmania Chettiar v. Ponnuswami Chettiar, the Madras High Court held that before any executing Court directs detention of a judgment-debtor, it must record finding as to the existence of the circumstances stipulated in Clauses (a) to (c) of proviso to Section 51 C.P.C. The principle squarely applies to the facts of this case. No discussion, whatever undertaken, much less, a finding was recorded by the executing Court.
10. Rules 37 and 40 of Order XXI C.P.C. prescribe the detailed procedure to be followed, before the arrest of judgment-debtor is ordered. The purpose of these provisions was discussed at length by this Court in Kasi Subbaiah Mudali v. Kasi Veeraswamy Mudali, and it was held, inter alia, as under:
"Since the liberty of a citizen is involved, law places a further obligation upon the decree-holder to prove certain facts as contemplated under Rule 40(1), that too, in the presence of a judgment-debtor. The other provisions contained in Rule 40 as well as the provisions of Section 51 and 55 of the C.P.C. add strength to these provisions. In a way, those provisions, in their cumulative effect, ascribe an element of criminal trial, to the proceedings under Rule 11-A of Order 21 of C.P.C."
Andhra High Court
P. Laxma Reddy vs Syndicate Bank, Zaheerabad ... on 19 July, 2005
Equivalent citations: 2005 (6) ALD 81, 2005 (5) ALT 606, IV (2006) BC 58
Bench: L N Reddy
