Gobind vs State Bank of India

L.N. Mittal, J.—Judgment-debtor (JD) has filed this revision petition under Article 227 of the Constitution of India impugning order dated 29.04.2013 (Annexure P-3) passed by the Executing Court thereby ordering the JD-petitioner to be sent to Civil Prison for two months, in execution petition filed by respondent-decree-holder (DH) State Bank of India, for execution of money decree. Petitioner had taken loan from the respondent. The matter was taken up in pre-litigative Lok Adalat for settlement. Respondent presented claim of Rs. 1,01,758/-. Settlement was effected at Rs. 90,000/- payable in six half yearly instalments of Rs. 15,000/- each. Thus, substantial benefit was granted to the JD in the settlement by reducing the amount including further interest for three years during which settled amount was payable. However, in spite thereof, the JD-petitioner committed default in payment of instalments, necessitating the filing of execution petition by the DH.

On notice of execution petition, JD-petitioner did not appear in the Executing Court despite service. Ultimately, DH filed application under Order 21 Rule 37 of the CPC for detaining the JD in Civil Prison. The JD did not appear in spite of service of notice of the said application requiring the JD to show cause why he should not be sent to prison. Accordingly, conditional warrant of arrest of JD was ordered to be issued vide order dated 16.07.2011. Ultimately, the JD appeared on 17.11.2012 and stated that he did not have means to pay the decretal amount.

I have heard counsel for the petitioner and perused the case file.

Counsel for the petitioner reiterated that the petitioner does not have means to satisfy the decree, and therefore, he could not be ordered to be detained in Civil Prison.

The aforesaid contention cannot be accepted in the facts and circumstances of the case. The JD-petitioner is grossly abusing the process of the Court as is evident from the sequence of events narrated hereinbefore. It is worth mentioning that execution petition had been filed on 20.04.2007 i.e. six years prior to the passing of the impugned order. The petitioner did not even care to appear in the execution petition. Even conditional warrant of arrest of JD remained unexecuted for 16 months. Moreover, the JD himself effected settlement in Lok Adalat undertaking to pay the settled amount in instalments. If he did not have the means to pay, he should not have effected the said settlement. On the contrary, under the settlement, the petitioner availed of the benefit of liability of reduced amount. Even otherwise, it cannot be said that the petitioner does not have the means to satisfy the decree because the petitioner admitted that the tools and equipment purchased by him, from the loan taken by him from the respondent, have been handed over to him by his father, who is running a workshop. In view thereof, it cannot be said that the petitioner does not have the means to satisfy the decree.

It may also be added that even the instant revision petition has been filed five months after the passing of the impugned order, and therefore, the revision petition is barred by delay and laches. It also depicts the conduct and attitude of the petitioner towards the process of the Court. In addition to it, as submitted by counsel for the petitioner, the petitioner has not surrendered in the Executing Court pursuant to impugned order. Thus, the petitioner is flouting the order of the Executing Court.

Keeping in view all the circumstances, I find no merit in this revision petition. There is no perversity, illegality or jurisdictional error in the impugned order of the Executing Court so as to warrant interference in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is not only meritless, but is also frivolous and deserves to be dismissed with costs, but I am refraining from imposing costs on the petitioner, keeping in view all the circumstances of the case. Accordingly, the revision petition is dismissed in limine. The petitioner is directed to surrender in the Executing Court within three weeks from today to undergo the sentence imposed by the Executing Court, failing which the petitioner, in addition to other proceedings, in accordance with law, shall also be liable to be proceeded against for committing Contempt of Court. The Executing Court shall send compliance report in this regard.