(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 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 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.
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.
Under section 51 issue of notice can be dispensed with only when the court would be justified in ordering the arrest of the judgment-debtor in view of sub-clause (i) of clause (a) to the proviso of section 51. Notice has to be issued to the judgment-debtor whenever the grounds for the arrest of the judgment-debtor would be those mentioned in sub-clause (ii) of clause (a) to the proviso of section 51, sub-clauses (b) and (c) to the proviso of section 51.
The existence of the circumstances justifying an order for arrest should be alleged either in the execution application itself or in a separate application or affidavit which should accompany the execution application. In the absence of it, the court cannot take action under Order XXI, Rule 37 or issue notice to the judgment-debtor.
The procedure to be followed when the judgment-debtor appears in court should be according to Order XXI, Rule 40, viz., the court should 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 should not commit him to the civil prison.
It is for the decree-holder to lead prima facie evidence in support of his application and where he has led no evidence, the court cannot issue an order against the judgment-debtor. Mere non-payment to the decree-holder when the judgment-debtor came into possession of means subsequent to the date of the decree will not always be sufficient for coming to the conclusion that the judgment-debtor refused or neglected to pay the decree-holder.
In the absence of evidence, which could have a bearing on these considerations, the court could not have satisfied that the judgment-debtor has refused or neglected to pay the decretal amount within the meaning of section 51(b) proviso.
A court must record its reasons in writing regarding its being satisfied under section 51, C.RC, that the judgment-debtor had rendered himself liable to be arrested and sent to civil jail on any of the grounds mentioned therein before directing his arrest.
The Amendment Act, 1976, has added in clause (c) of section 51 of the Act, the words “for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section”. This has been done so as to harmonise the provisions of section 51(c) with the provisions of section 58 of the Code.
Jolly George Varghese v. The Bank of Cochin:
In this case the judgment-debtors suffered a decree against them in original suit No. 57 of 1972 in a sum of Rs. 2.5 lakhs, the respondent bank being the decree-holder. In execution of the decree a warrant for arrest and detention in the civil prison was issued to the appellants under section 51 of the Civil Procedure Code on 22nd June, 1979.
Besides this process, the decree-holders had proceeded against the properties of the judgment-debtors and, in consequence, all their immovable properties had been attached for the purpose of sale in discharge of the decree debts. No investigation, however, had been made by the executing court refusing the current ability of the judgment-debtors to clear off the debts or their mala fide refusal, if any, to discharge the debts.
The question was whether under such circumstances the personal freedom of the judgment-debtors can be held in ransom until repayment of the debt, and if section 51 read with Order XXI, Rule 37, C.P.C. does warrant such a step, whether the provision of law is constitutional, tested on the touchstone of fair procedure under Article 21 and in conformity with the inherent dignity of the human person in the light of Article 11 of the International Covenant on Civil and Political Rights. A modern Shylock is shackled by law’s humane handcuffs.
In an appeal filed by the judgment-debtors in the Supreme Court, the matter involved a profound issue of constitutional and international law and offered a challenge to the nascent champions of human rights in India whose politicised pre-occupation had forsaken the civil debtor whose personal liberty was imperiled by the judicial process itself, thanks to section 51 (Proviso) and Order XXI, Rule 37, C.P.C.
Here was an appeal by the judgment-debtors—the appellants-whose personal freedom was in peril because a court warrant for arrest and detention in the civil prison was chasing them for non-payment of an amount to a bank—the respondent, which had ripened into a decree and had not yet been discharged. Was such deprivation of liberty illegal?
From the perspective of international law the question posed was whether it was right to enforce a contractual liability by imprisoning a debtor in the teeth of Article 11 of the International Covenant on Civil and Political Rights. The Article reads:
“No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation”.
An apercu of Article 21 of the Constitution suggests the question whether it is fair procedure to deprive a person of his personal liberty merely because he has not discharged his contractual liability in the face of the constitutional protection of life and liberty as expounded and expanded by a chain of rulings of the Supreme Court beginning with Maneka Gandhi’s case (1978) 1 S.C.C. 248. Article 21 reads:
21. Protection of life and personal liberty:
No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The Supreme Court in the judgment delivered by Hon. Krishna Iyer, J. in a bench comprising Hon. Iyer and Hon. Pathak, JJ. set aside the judgment under appeal and directed the executing court to decide de novo the means of the judgment-debtors to discharge the decree in the light of the interpretation given by them.
Their lordships observed that the Covenant bans imprisonment merely for not discharging a decree debt. Unless there be some other vice or mens rea apart from failure to foot the decree, international law frowns on holding the debtor’s person in civil prison, as hostage by the court. India is now a signatory to the Covenant and Article 51(c) of the Constitution obligates the State to “foster respect for international law and treaty obligations in the dealings of organised peoples with one another”.
Even so, until the municipal law is changed to accommodate the Covenant what binds the court is the former, not the latter. A.H. Robertson in “Human Rights—in National and International Law” rightly points out that international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law.
From the national point of view the national rules alone count. With regard to interpretation, however, it is a principle generally recognised in national legal systems that, in the event of doubt, the national rule is to be interpreted in accordance with the State’s international obligations.
The remedy for breaches of International Law in general is not to be found in the law courts of the State because International Law per se or proprio vigore has not the force or authority of civil law, till under its inspiration impact actual legislation is undertaken.
The positive commitment of the States parties ignites legislative action at home but does not automatically make the Covenant an enforceable part of the corpus juris of India.
Their lordships of the Supreme Court referred to the decision in Xavier v. Canara Bank Ltd., and to the observations of the Central Law Commission, in its Fifty-fourth Report, while dealing with section 51, C.P.C. and stated that if the debtor once had the means but now has not, or if he had money now on which there are other pressing claims, it is violative of the spirit of Article 11 to arrest and confine him in jail so as to coerce him into payment. The Commission reiterated:
“Imprisonment is not to be ordered merely because, like Shylock, the creditor says, ‘I crave the law, the penalty and forfeit of my bond.”
The law does recognise the principle that “Mercy is reasonable in the time of affliction, as clouds of rain in time of drought.” (Ecclesiastious, 35.20).
Their lordships of the Supreme Court concurred with the Law Commission in its construction of section 51, C.P.C. It followed that quandam affluence and current indigence without intervening dishonestly or bad faith in liquidating his liability could be consistent with Article 11 of the Covenant, because then no detention was permissible under section 51, C.P.C.
Equally meaningful was the import of Article 21 of the Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Article 21, read with Articles 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence:
Maneka Gandhi’s case as developed further in Sunil Batra v. Delhi Administration. It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling.
To be poor, in this land of Daridra Narayana (land of poverty) is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness.
Unreasonable and unfairness in such a procedure is inferable from Article 11 of the Covenant. But this is precisely the interpretation their lordships put on the proviso to section 51, C.P.C. and the lethal blow of Article 21 could not strike down the provision, as now interpreted.
The words which hurt are “or has since the date of the decree, the means to pay the amount of the decree”. This implies superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that latter point of time he was found to be penniless.
That is not a sound position apart from being inhuman going by the standards of Article 11 (of the Covenant) and Article 21 (of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past, or, alternatively, current means to pay the decree or a substantial part of it.
The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor’s other pressing needs and straitened circumstances will play prominently. We would have, by this construction, secured law with justice, harmonised section 51 with the Covenant and the Constitution, their lordships added.
In the present case the debtors were in distress because of the blanket distraint of their properties. Whatever might have been their means once, that finding became obsolete in view of later happenings.
In view of the above, their lordships while laying down the law directed the executing court to re-adjudicate on the present means of the debtors vis-a-vis the present pressures of their indebtedness, or alternatively whether they have had the ability to pay but have improperly evaded or postponed doing so otherwise dishonestly committed acts of bad faith respecting their assets. The Court was directed to take note of other honest and urgent pressures on their assets since that is the exercise expected of the Court under the proviso to section 51.
In the result the Supreme Court set aside the judgment under appeal and directed the executing court to decide de novo the means of the judgment-debtors to discharge the decree in the light of the interpretation given above.
Execution of decree, arrest and detention:
As observed by the Supreme Court in its decision in the case of Jolly George Varghese and another v. The Bank of Cochin, a simple default to discharge the decree debt is not enough to justify arrest and detention. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively current means, to pay the decree or a substantial part of it.
The principle contained in section 51 of the Code emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree.
Wrong entry in Bank—no right conferred:
Attachment of bank account in execution of decree was ordered on the assumption that certain amount was to the credit of judgment-debtor. But such assumption was found to be based on erroneous entry in the account which was corrected by the Bank. It was held that the wrong entry did not confer any right on judgment-debtor for claiming that amount and no directions could be issued to Bank to make payment of that amount.