AI Structured Summary
Not yet generated for this judgment
Judgment
K. Bhaskaran, J.—So far as the 1st petitioner (1st judgment-debtor) is concerned, the impugned order undoubtedly is wrong. In the year
1976 the 1st petitioner was found to be a person having means to discharge the decree-debt or some substantial portion thereof, oN that basis the
Court below in a subsequent application has ordered issue of warrant for the arrest and detention of the petitioners in civil prison.
Sri K. N. Narayanan Nair, the counsel for the petitioners, submitted that a duty was cast on the Court to enquire into and record a finding on
the question whether the judgment-debtors had the means to pay off the decree amounts or some substantial portion thereof at the time when the
decree was put into execution and by which process his freedom of movements was threatened to be taken away. In other words, his argument is
that it was the duty of the Court to ascertain the means of the judgment-debtor as it stood at the time when the present application for renewal of
the execution was filed without resting content with the finding on the question on earlier occasion. In this connection he brought to my notice the
well known observations of Krishna Iyer J., in Jolly George Varghese and Another Vs. The Bank of Cochin, . After having considered the matter
in the light of Article 11 of International Covenant on Civil and Political Rights and the relevant provisions of the CPC like Section 51 and Order
XXI, Rule 37, what has been stated in paragraph 11 reads as follows:--
The words which hurt are ''or has had 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 later point of time he was found to be penniless. This 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.
Tested in the light of the observations of Krishna Iyer, J., referred to above, it is clear that the Court below was not justified in passing an order for
the issue of warrant for arrest and detention of the 1st petitioner (1st judgment-debtor). However, the contention advanced by Sri Somasundaram
who argued the case on behalf of the counsel for the respondent-decree-holder is that even assuming that a case for the issue of arrest warrant
against the 1st petitioner had not been made out, that would not ipso facto absolve the liability of the 2nd petitioner (3rd judgment-debtor) who
stood surety and was equally bound by the liability under the decree. The 2nd petitioner is seen to have contended only for the position that the 1st
petitioner was a ''debtor'' within the meaning of that term in Act XVII of 1977 and, therefore, neither he nor the 1st petitioner was under an
obligation to pay the decree amount. This certainly is not the correct position in law.
Sri Narayanan Nair on behalf of the petitioner then submitted that in the event of this Court holding that if not the 1st petitioner, at least the
second petitioner, was liable to discharge the decree amount, the 2nd petitioner might be given six months'' time to discharge the entire amount due
under the decree that was being put into execution. The 2nd petitioner is stated to be a school teacher; considering the willingness expressed by
him to discharge the entire liability under the decree, and viewed in the background of his limited resources, I think, there is justification for granting
the time as prayed for by Sri Narayanan Nair.
The result, therefore, is that the order impugned in this revision shall not be enforced as against the 1st petitioner -- 1st judgment-debtor. The
2nd petitioner (3rd judgment-debtor) is given six months'' time from this date to discharge the entire liability under the decree. In case he commits
default in doing so, the decree-holder would be at liberty to proceed against him for the recovery of the entire amount in a lump. The revision is
allowed to the above extent. In the peculiar circumstances of the case I would direct the parties to bear their respective costs.