KISHORI LAL SAYAL Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) THE State Sank of India obtained a decree for Rs. 2,17,000 with cost and interest at 18% per annum against Darshan Kumar, principal judgment-debtor, and Kishori Lal Sayal, the guarantor. In execution of the decree, Darshan Kumar produced truck No. PJC 7245 in the court. The execution court appointed Shri Inderjit Verma, advocate, to inspect the truck and take the same into possession. Before it could be so done, Darshan Kumar fled with the truck. Subsequently, on application filed for detention in prison of the judgment-debtor, notice was given. Kishori Lal, guarantor, raised objections. The Additional Senior Sub-Judge, Pathankot, vide order dated May 17, 1988, held that Kishori Lal, judgment-debtor, had means to pay the decretal amount as he was also in possession of one truck and he having failed to make the payment was directed to be detained in the civil prison for two months or till payment of the decretal amount of Rs. 2,55,000, whichever is earlier. Kishori Lal, judgment-debtor, has challenged this judgment in the present revision petition.

(2.) UNDER Order 21, Rule 37, Civil Procedure Code, before ordering a judgment-debtor to be detained in prison, notice should be given. Similar provision is contained in Section 51 of the Civil Procedure Code which reads as under : "51. Powers of court to enforce execution.--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) by delivery of any property specifically decreed ; (b) by attachment and sale or by sale without attachment of any property ; (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 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) is likely to abscond or leave the local limits of the jurisdiction of the court, or (ii) has, after 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) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. "

(3.) NO doubt, one of the modes of execution of the decree is by arrest and detention in prison of the judgment-debtor as provided under Section 51 of the Civil Procedure Code. However, according to the proviso added thereto, such an order is to be passed only after the court is satisfied that the judgment-debtor with the object or effect of obstructing or delaying the execution of the decree was likely to abscond or leave the local limits of the jurisdiction of the court or that, after 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 the said property or further, the judgment-debtor, since the date of the decree, had the means to pay the decretal amount and had refused or neglected to pay the same or that the decree was for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. An order to detain such a judgment-debtor in civil prison could be passed.