Civil Revision No.3444 of 2010 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3444 of 2010 Date of decision: 23.9.2011 Bal Krishan Sharma ...Petitioner Versus Baldev Singh ...Respondent CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. Ajit Sihag, Advocate for the petitioner. . Mr. Ajit Atri, Advocate for the respondent. AJAY KUMAR MITTAL, J. The decree holder has filed this revision petition under Article 227 of the Constitution of India for modification of order dated 10.11.2009 whereby Executing Court on account of having sent the judgment debtor to civil imprisonment for one month (30 days) for the recovery of decretal amount had discharged the judgment debtor and released the property without payment or discharge of the decree in favour of the decree holder. 2. Briefly the facts as narrated in the petition are that the petitioner-plaintiff filed a suit for recovery of ` 46096/- ( ` 34,400/- as principal and ` 11696/- as interest calculated at the rate of 2% per month) against the respondent-defendant on the ground that defendant borrowed a sum of Rs.34,400/- on executing pronote and receipt dated 25.4.2003 in presence of witnesses. The suit was decreed in favour of the petitioner vide judgment and decree dated 12.8.2006. Thereafter, since the respondent had not paid the decretal amount to the petitioner, petitioner Civil Revision No.3444 of 2010 -2- **** filed execution petition against the judgment debtor in the Executing Court . The Executing Court sent the judgment debtor in civil imprisonment for one month (30 days) and released the property of the judgment debtor already attached vide impugned order dated 10.11.2009. Hence the present revision petition. 3. Learned counsel for the petitioner submitted that even though the judgment debtor was imprisoned for not complying with the decree for payment of decretal amount and sent to civil imprisonment, the same would not discharge the judgment debtor of his obligation to pay the debt under the decree. 4. Learned counsel for the respondent supported the order passed by the Executing Court. 5. After hearing the learned counsel for the parties and considering the rival contentions, I find force in the contention of learned counsel for the petitioner. 6. Section 51 of the Code of Civil Procedure (in short “the Code”) deals with the power of Court to enforce execution and reads thus:- “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: Civil Revision No.3444 of 2010 -3- **** 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 the 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. Explanation : In the calculation of the means of the judgment debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.” 7. A plain reading of the aforesaid provision spells out that execution of a decree can be effected by delivery of any property which has been decreed; by attachment and sale or by sale without attachment of any property; by arrest and detention in prison; by appointing a receiver or in the manner as the nature of the relief may warrant. Proviso provides for the conditions to be satisfied before detention in prison is resorted to as execution of decree for payment of money. 8. Section 58 of the Code provides for detention and release. It is couched in the following words:- Civil Revision No.3444 of 2010 -4- **** “58. Detention and release:- (1) Every person detained in the civil prison in execution of a decree shall be so detained,-- (a) where the decree is for the payment of a sum of money exceeding five thousand rupees, for a period not exceeding three months, and, (b) where the decree is for the payment of a sum of money exceeding two thousand rupees, but not exceeding five thousand rupees, for a period not exceeding six weeks: PROVIDED that he shall be released from such detention before the expiration of the said period of detention-- (i) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil prison, or (ii) on the decree against him being otherwise fully satisfied, or (iii) on the request of the person on whose application he has been so detained, or (iv) on the omission by the person, on whose application he has been so detained, to pay subsistence allowance: PROVIDED, also, that he shall not be released from such detention under clause (ii) or clause (iii), without the order of the court. (1A) For the removal of doubts, it is hereby declared that no order for detention of the judgment debtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree does not exceed two thousand rupees. (2) A judgment debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.” 9. Sub Section (2) of Section 58 of the Code lays down that the detention of the judgment debtor in civil prison would not discharge him of his liabilities to pay under a Court decree. 10. The arrest of the judgment debtor for non complying with the Civil Revision No.3444 of 2010 -5- **** decree was one of the mode of the execution of the decree. The detention and arrest and discharge of decretal amount are different modes of execution of the decree and are independent of each other. The arrest and detention would not discharge the judgment debtor from his obligation to pay the decretal amount under the decree of the Court. The provisions of Section 58(2) of the Code supports the plea of the petitioner and the respondent shall not stand discharged of his liabilities under Civil Court decree. Once that was so, impugned order dated 10.11.2009 is accordingly modified and the case is remanded to the Executing Court to proceed for execution of the decree in accordance with law. 11. The revision petition is disposed of. September 23, 2011 (Ajay Kumar Mittal) Pka Judge