IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 OP(C).No. 1299 of 2010(O) ------------------------- EP.8/2009 of DISTRICT COURT, KALPETTA .................... PETITIONERS --------------------- 1. P.V.RAMU, S/O.ELUMBAN, PUTHOORVAYAL VEEDU, PUTHOORVAYAL POST, KALPETTA - 673 121, WAYANAD. 2. P.LAKSHMANAN, PUTHOORVAYAL VEEDU, PUTHOORVAYAL POST, KALPETTA - 673 121, WAYANAD. 3. M.C.SEBASTIAN, MADATHIL PARAMBIL HOUSE, POST PANAMARAM - 670 721, WAYANAD. 4. P.M.RAGHAVAN, PANAYI HOUSE, POST TRIKAIPETTA - 673 577, WAYANAD. BY ADV. SRI.P.C.CHACKO(PARATHANAM) SMT.ASHA CHACKO RESPONDENT: --------------- M/S.MAHARASHTRA APEX CORPORATION LTD., MANIPAL REPRESENTED BY ITS G.P.A. HOLDER SRI.K.GOPALAKRISHNA BHAT, S/O.LATE K.RAMADAS BHAT, KANJIBETTU, UDUPI - 560008. ADV. SRI.S.R.DAYANANDA PRABHU FOR R THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE ARBITRATION AWARD DT.20.7.2002 IN A.P.NO.150/2001. EXT.P2: COPY OF THE E.P.NO.8/09 IN A.P.NO.150/2001 ON THE FILES OF THE DISTRICT COURT, KALPETTA. EXT.P3 SERIES: COPY OF THE OBJECTION FILED ON 6.9.2010 BY THE PETITIONERS IN E.P.NO.8/2009. EXT.P4: COPY OF THE E.A.NO.26/2010 DT.15.12.2010 IN E.P.NO.8/2009. EXT.P5: COPY OF E.A.NO.27/2009 DT.15.12.2010. EXT.P6: COPY OF E.A.NO.28/2010 DT.15.12.2010. EXT.P7: COPY OF E.A.NO.29/2010 DT.15.12.2010. EXT.P8 SERIES: COPY OF THE AFFIDAVIT FILED BY THE PETITIONERS BEFORE THE COURT BELOW DT.15.12.2010. //TRUE COPY// PA TO JUDGE P.S.GOPINATHAN, J. -------------------------------------- O.P.(Civil) No.1299 OF 2010 -------------------------------------- Dated this the 31st day of January, 2011 J U D G M E N T ~~~~~~~~~~~ The petitioners are the judgment debtors in A.P.No.150/2001, an arbitration award. In execution of the said award, the respondent filed E.P.No.8/2009. Ext.P2 is the copy of the Execution Petition. The prayer sought in the Execution Petition is for arrest and detention of the judgment debtors. According to the 1st respondent, the judgment debtors are having sufficient means to discharge the decree debt. To prove the same, affidavits were also filed before the Execution Court. Notice under Order XXI Rule 37 was served upon the judgment debtors. In response to the notice, judgment debtors filed separate counter statements. The 1st judgment debtor (Petitioner No.1) mainly assailed the award though execution court is not the forum to assail the award. He had admitted that he had one acre of property and that was also attached by the decree holder. There is no mention that he lacks means to discharge the decree debt. It is revealed by the statment filed him under Order XXI Rule 41(2) CPC that he is employed in O.P.(C) No.1299/2010 2 police department. However, he suppressed the gross salary. Other judgment debtors had raised a contention that they have no means to discharge the decree debt. The Execution Court on 10.12.2010 passed the impugned order, which is quoted in paragraph 5 of the petition as follows: (Certified copy of the order is not produced) "JD not filed affidavit as represented on 15.11.2010. Decree holder filed affidavit stating that Jds are having sufficient means but not paying deliberately. It prima facie proved that deliberate omission on the part of JDs to remit decree amount, long pending as EP, hence ordered to arrest the JDs. Issueorder of arrest. Arrest on 4.1.2011." Assailing the said order, this petition was filed. 2. I have heard Sri.P.C.Chacko, the learned counsel appearing for the petitioner and Sri.S.R.Dayananda Prabhu, the learned counsel appearing for the respondent. O.P.(C) No.1299/2010 3 3. The learned counsel for the petitioner would submit that the 1st petitioner though employed in Police department, was having no sufficient means to pay off the decree debt in lump as the total claim exceeds Rs.10,25,000/-. In such submission, there is total lack of bonafides because the 1st petitioner has no case that he had paid anything though the award was passed ten years back. Had he cared to pay within the means, sometimes, the decree debt could have been wiped off. It is evident that he was purposefully avoiding payment. As regards the other petitioners, the argument advanced is that since they are having no means to discharge the decree debt, the prayer for execution of the decree by arrest and detention is not at all sustainable. It was also submitted by the learned counsel for the petitioner that though the petitoners had filed objection, the Execution Court didn't consider the same. According to the learned counsel, that is the main grievance of the petitioners. 4. According to the learned counsel for the respondent, the court below ordered arrest after having satisfied by the affidavit of the respondent that the petitioners have sufficient O.P.(C) No.1299/2010 4 means to discharge the decree debt and they are wilfully avoiding discharge and hence the order of arrest is perfectly justified. It was also submitted that if it is a defence of no means, they could very well raise the same before the court below during the course of enquiry under Order XXI Rule 40 and this petition is premature and misconceived and the order impugned is not liable to be interfered. 5. Going by Order XXI Rule 40, I find that even if the petitioners were arrested and brought before the Execution Court in pursuance to the warrant of arrest, since the plea is of no means, they are at liberty to raise their objections before they being sent to civil prision as the legislature had provided post arrest enquiry. For a correct appraisal, I find that it would be appropriate to read Order XX1 Rule 40. "40. Proceedings on appearance of judgment debtor in obedience to notice or after arrest:- (1) When a judgment debtor appears before the Court in obedience to a notice issued under Rule 37, or is brought before the Court after being arrested in execution O.P.(C) No.1299/2010 5 of a decree for the payment of money, the Court shall proced to hear the decree holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the judgment debtor an opportunity to showing cause why he should not be committed to civil prison." In the light of the above provision, when the judgment debtors are brought before the Execution Court after being arrested, the Execution Court is bound to hear the decree holder and take all such evidence and the judgment debtors shall be given an opportunity to show cause for not committing to civil prison in execution of the decree. At that stage, the petitioners can raise their plea of no means. So, appropriate remedy is provided under the Civil Procedure Code itself even if the petitioners were arrested and produced before the court. The petitioners ought have availed the same instead of rushing to this Court. Since it is revealed that the Execution Court had ordered to issue arrest warrant on satisfaction of the means of the judgment debtors for discharge of the decree debt, on the basis of the affidavit filed by the decree holder in support of the Execution Petition and since the Civil Procedure Code provides provision O.P.(C) No.1299/2010 6 for hearing the judgment debtors before committing to the civil prison, I find that the order impugned has no way caused any prejudice to the petitioners. Neither it is illegal so as to be rectified in exercise of the powers vested on this Court under Article 227 of the Constitution of India. 6. I find that, in the above circumstance, this Writ Petition can be disposed with a direction to the petitioners to move the Execution Court for ventilating their grievance and to direct the Execution Court to proceed further only after conducting an enquiry as contemplated under Order XXI Rule 40. In the above circumstance, this Writ petition is disposed with a direction to the Execution Court to proceed further only after conducting an enquiry under Order XXI Rule 40. It is submitted from the Bar that the Execution Petition is posted on 17.2.2011. The petitioners are directed to appear before the Execution Court on 17.2.2011. On their appearance, they shall be treated as brought under arrest and to proceed further under O.P.(C) No.1299/2010 7 Order XXI Rule 40. If the petitioners fail to appear, the execution court shall issue fresh warrant. In the case of the 1st petitioner, issuance of arrest warrant shall be intimated to the Superintendent of Police of the District with request for initiating action under Rule 51 of the Government Servants' Conduct Rule. No costs. (P.S.GOPINATHAN, JUDGE) ps