Execution Of Money Decree,Detention And arrest .2/2 By judge Nadia Siraj ASJ скачать в хорошем качестве

Execution Of Money Decree,Detention And arrest .2/2 By judge Nadia Siraj ASJ

Execution how made in money decree ,detention & arrest detailed lecture The Code of Civil Procedure lays down various modes of executing a decree. One of such modes is arrest and detention of the judgment-debtor in a civil prison. The decree-holder has an option to choose a mode for executing his decree and normally, a court of law in the absence of any special circumstances, cannot compel him to invoke a particular mode of execution[i]. Sections 51 to 59 and Rules 30 to 41 of Order XXI deal with arrest and detention of the judgment debtor in civil prison. The substantive provisions deal with the rights and liabilities of the decree-holder and judgment debtor and procedural provisions lay down the conditions thereof. The provisions are mandatory in nature and must be strictly complied with. They are not punitive in character. The object of detention of judgment-debtor in a civil prison is twofold. On one hand, it enables the decree-holder to realise the fruits of the decree passed in his favour; while on the other hand, it protects the judgment-debtor who is not in a position to pay the dues for reasons beyond his control or is unable to pay.[ii] Therefore, mere failure to pay the amount does not justify arrest and detention of the judgment-debtor inasmuch as he cannot be held to have neglected to pay the amount to the decree-holder. When arrest and detention may be ordered Where the decree is for the payment of money, it can be executed by arrest and detention of the judgment debtor.[iii] Likewise, in case of a decree for specific performance of contract or for injunction, a judgment debtor can be arrested and detained.[iv] Again, where a decree is against a corporation, it can be executed with the leave of the court by detention in civil prison of its directors or other officers.[v] Who cannot be arrested As per the Civil Procedre Code, the following classes of persons cannot be arrested or detained in a civil prison: Judicial officers, while going to, presiding in or returning from their courts[vii]; A woman[vi]; The parties, their pleaders, mukhtars, revenue agents and recognised agents and their witnesses acting in disobedience to a summons, while going to, or attending or returning from the court[viii]; Members of legislative bodies[ix]; Any person or class of persons, whose arrest, according to the State Government, might be attended with danger or inconvenience to the public[x]; A judgment-debtor, where the decretal amount does not exceed rupees two thousand[xi]. The provisions relating to arrest and detention of the judgment-debtor protect and safeguard the interests of the decree-holder[xii]. If the judgment-debtor has means to pay and still he refuses or neglects to honour his obligations, he can be sent to civil prison[xiii]. Mere omission to pay, however, cannot result in arrest or detention of the judgment-debtor. Before ordering detention, the court must be satisfied that there was an element of bad faith, “not mere omission to pay but an attitude of refusal on demand verging on demand verging on disowning of the obligation under the decree”. The above principles have been succinctly and appropriately explained by Krishna Iyer, J. in Jolly George Verghese v. Bank of Cochin[xiv], in the following words: “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, a consideration of the debtor’s other pressing needs and straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonised Section 51 with the covenant and the Constitution.” It was ultimately propounded: “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, 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. Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the covenant. But this is precisely the interpretation we have put on the proviso to 51 of CPC and the lethal blow of Article 21 cannot strike down the provision, as now interpreted”