Judgment:
ORDER
1. This revision petition is directed against the order of the learned Junior Civil Judge, Sompeta dated 12-8-1999 passed in EP No.4 of 1992 in OS No.35 of 1985 under which on the petition of the decree holder, arrest of the judgment debtor has been ordered for executing a money decree.
2. The contention on behalf of the decree holder is that inspite of having means to satisfy the decree, the decree holder has been avoiding payment of the decretal amount and hence his request for executing the decree by way of arrest and detention of the judgment-debtor in civil prison.
3. In response to notice issued under Order 21, Rule 37 of CPC, the judgment debtor appeared and filed his counter denying the material allegations.
4. As seen from the order under revision, the judgment-debtor is alleged to have sufficient means by way of properties to enable him to pay the decretal amount but he has avoided to pay it. The defence on behalf of the judgment-debtor is that of denial of these allegations.
5. It is further pleaded on his behalf that the judgment-debtor is a sickly man and he is suffering from jaundice as well as hyper tension and blood pressure since long time.
6. It appears on behalf of the decree holder he examined himself as PW1 and on behalf of the judgment-debtor his son -Laxminarayana has been examined as RW1.Exs.R1 and R2, the medical certificates have also been marked on behalf of the judgment debtor.
7. The learned Counsel for the revision petitioner contends that the burden lies on the decree-holder to show that the judgment-debtor has sufficient means and inspite of having such means has refused or neglected to satisfy the decree. The contention of the learned Counsel for the petitioner Sri M.V. Suresh is that the decree-holder has failed to satisfy these conditions and as such the order directing the arrest of the judgment is illegal and is liable to be set aside. He also contended that in view of the evidence regarding the illness of the judgment-debtor, the order directing him to be sent to civil prison cannot be upheld.
8. The learned Counsel for the respondent-decree holder on the other hand contends that the order of the learned Junior Judge is based on sufficient material on record for holding that inspite of having means, the judgment-debtor has been avoiding to pay the decretal amount.
9. The learned Junior Judge has formulated two points for consideration. 1. Whether the judgment-debtor has sufficient means to pay the decretal amount; and 2. Whether the judgment-debtor was suffering with 'incurable' (?) disease and was not fit to detain (sic. To be detained).
10. On the first point, the learned Judge gave a finding in favour of the decretal holder. However, it is seen that this finding is based entirely on admission said to have been made by RW1 during his cross-examination. On this basis, the learned Judge came to the conclusion that the judgment-debtor was possessed of a house worth Rs.3 to 4 lakhs and on this the learned Judge held that 'in such a case, itcannot be said safely that the judgment-debtor is having no means to pay the decretal amount'.
11. In the case of Shaik Mohammad Hussain v. Mada Reddiah, 1979 (1) ALT 210, cited on behalf of the petitioner, this Court held that for the arrest of the judgment debtor under Order 21, Rule 37 of CPC, no enquiry is contemplated but an enquiry is contemplated to commit him to civil prison as contemplated under Section 51 of CPC which could be done only when the Court is satisfied that the judgment debtor has neglected or refused to pay the amount of the decree. Even here, one can be committed to civil prison only after giving him an opportunity to pay the amount. But, these questions do not arise in this case inasmuch as in this case in response to notice under Order 21, Rule 37 of CPC, the judgment-debtor appeared in the Court and there was no occasion to issue a warrant for his arrest for compelling his presence in the Court for facing an enquiry as to whether he is liable to be committed to civil prison in execution of the decree.
12. In the case of Sastiy v. Bank of India, 1979 (2) ALT 335, a Division Bench of this Court held that requirement of law as regards means of judgment-debtor to pay the decretal amount was to be ascertained having regard to the point of time obtaining only subsequent to the passing of the decrees was sought to be put in execution. It was also held that it was not sufficient for the Court merely to be satisfied that the judgment-debtor has means to pay the decretal amount, it must be further satisfied that the judgment-debtor having means to pay, refused or neglected to pay.
13. For the purpose of convenience, the relevant portion of Section 51 of the Civil Procedure Code is extracted below:
'51. 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 ........
b...
c......
d........
e.....
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).....
(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).....
Explanation :--In the calculation of the means of the judgement-debtor for thepurposes 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.'
14. In this case, as seen from the judgment, the basis for the arrest fo the judgment-debtor is admission of RW1 (son of judgment-debtor), who in his cross-examination admitted that the judgment debtor has a house worth Rs.3 to 4 lakhs. Explanation to Section 51 extracted above mandates that in calculation of means of the judgment debtor for the purpose of clause (b), there shall be left out of account of 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. Section 60 of CPC makes provision in respect of properties which are liable to be attached and also makes provision of certain exemptions from such attachment. The relevant part of proviso to Section 60 reads as follows:
'Section 60. (1).....
Provided that the following particulars shall not be liable to such attachment or sale, namely,
(a).....
(b).....
(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him;
(d).....
(e).....'
15. The cause title in the petition shows that the judgment-debtor has been shown asa cultivator which means that he is an agriculturist. Under clause (c) of the proviso referred to above, a house belonging to an agriculturist and occupied by him is exempt from attachment. In view of explanation to Section 51 such a house belonging to a judgment-debtor which is not liable for attachment has to be left out of account of any property constituting the means of the judgment-debtor for the purpose of clause (b) of proviso to Section 51.
16. There is no indication in the order under revision as there is no discussion on this aspect at all.
17. In the case of Jolly George Varghese v. Bank of Cochin, : [1980]2SCR913 , the Supreme Court observed as follows:
'The simple default to discharge the decree, is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past 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'.
18. Thus, the burden lies on the decree holder to show that the property which is said to constitute means alleged to be possessed by the judgment-debtor is not of the kind which is not liable for attachment under proviso to Section 60 ofCPC as clarified under explanation to Section 51 of CPC. In this case, the finding recorded by the learned Junior Judge has not taken into account these aspects.
19. In regard to plea of the judgment debtor as to his sickness, the learned Junior Judge proceeded on the basis that the judgment debtor was required toestablish that he was suffering with 'incurable disease' whereby he was not in a position to be detained in the civil prison. He recorded the finding that the respondent failed to establish the same with cogent and reliable evidence. The learned Judge has not recorded his finding as to the nature of the disease or infirmities with which the judgment-debtor is claimed to be afflicted.
20. Section 59 of CPC has a bearing on this aspect which reads as follows:
'59. (1) At any time after a warrant for the arrest of a judgment-debtor has been issued the Court may cancel it on the ground of his serious illness.
(2) Where a judgment-debtor has been arrested, the Court may release him if, in its opinion, he is not in a fit state of health to be detained in the civil prison.
(3).....'
21. However, it may be seen that Section 59 of CPC seems to come into operation after the warrant for the arrest of the judgment-debtor has been issued or where the judgment-debtor has been committed to the civil prison. At any rate, Section 59 of the CPC contemplates that after a warrant of arrest is issued under Section 51 of CPC, the Court may cancel it on the ground of serious illness of the judgment debtor. Thus, apart from the question whether the matter of illness can be taken into account before issuing the warrant of arrest for the purpose of detention in civil prison or before committing him to civil prison, the question of fact as to whether the judgment-debtor has satisfied that he was suffering from serious illness as contemplated under Section 59(1) of the CPC has not been dealt with by the learned Judge. There is no discussion of the evidence of RW1 on this aspect and there is no discussion on the medical certificates Exs.R1 and R2 produced on behalf of the judgment-debtor for coming to a conclusion whether the judgment-debtor was suffering with serious illness as contemplated under Section 59 of the CPC. The learned Judge seems to have proceeded on the assumption that the judgment-debtor was required to show that he was suffering from an incurable disease.
22. In view of the above discussion, I am inclined to hold that the order of the learned Junior Judge suffers from infirmities amounting to irregularity.
23. In the result, the civil revision petition is allowed and the order under revision is set aside and the matter is remitted back for fresh enquiry on the relevant aspects as discussed above. The petitioner and the respondent shall be given such opportunities for producing any further evidence before the Court as they may desire.