IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTIETH DAY OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1722 of 2009 BETWEEN A. Renuka. ... PETITIONER AND Koppineedi Trinadha Naga Venkata Prasad. ...RESPONDENT Counsel for the Petitioner: MR. K.V.L. NARASIMHA RAO Counsel for the Respondent: --NONE APPEARED-- The Court made the following: ORDER: Petitioner/decree holder filed E.P.No.214 of 2007 in O.S.No.377 of 2006 before the I Additional Junior Civil Judge, Bhimavaram, seeking arrest of the judgment debtor. The said EP was dismissed on 30.06.2008 by the Court below on finding that the respondent/judgment debtor is working as a teacher in Zilla Parishad High School and even according to the petitioner, the respondent is getting a salary of Rs.12,000/- per month. The executing Court, therefore, declined to pass orders as to arrest unless the decree holder exhausts other modes of recovery and giving opportunity to the petitioner/decree holder to file a fresh EP for attachment of salary dismissed the EP. That order is questioned in this revision. 2. Learned counsel for the petitioner relies upon a decision of this Court in CRP.No.54 of 2009 dated 15.04.2011 wherein in similar circumstances this Court held that mode of execution for realization of decretal amount is left for the decree holder and neither the judgment debtor nor the Court can direct particular mode of execution. In that view of the matter, this Court had set aside the similar order directing the executing Court to determine afresh about the liability of arrest of the judgment debtor. 3. Proviso to Section 51 of the Code of Civil Procedure, 1908 as well as the decision of the Supreme Court in JOLLY GEORGE VARGHESE v. BANK OF COCHIN[1] is appropriate to be adverted to at this stage, particularly, as the Supreme Court has considered Section 51 CPC as well as Article 11 of the International Covenant on Civil and Political Rights. The following relevant passages from the aforesaid decision may, therefore, be noticed: “6. … The Covenant bans imprisonment merely for not discharging a decree debt. Unless there be some other vice or mens rea apart from failure to foot the decree, international law frowns on holding the debtor’s person in civil prison, as hostage by the court. India is now a signatory to this Covenant and Art. 51 (c) of the Constitution obligates the State to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another”. Even so, until the municipal law is changed to accommodate the Covenant what binds the court is the former, not the latter. A.H. Robertson in “Human Rights in National and International Law” rightly points out that international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law. From the national point of view the national rules alone cannot … with regard to interpretation, however, it is a principle generally recognised in national legal systems that, in the event of doubt, the national rule is to be interpreted in accordance with the State’s international obligations. The position has been spelt out correctly in a Kerala ruling (Xavier v. Canara Bank Ltd. 1969 Ker LT 927 at pp. 931, 933) on the same point. In that case, a judgment-debtor was sought to be detained under Order 21, Rule 37, Civil P.C. although he was seventy and had spent away on his illness the means he once had to pay of the decree. The observations there made are apposite and may bear excerption. …While considering the international impact of international covenants on municipal law, the decision concluded: Indeed the construction I have adopted of S.51, C.P.C, has the flavour of Article 11 of the Human Rights Covenants, Counsel for the appellants insisted that law and justice must be on speaking terms – by justice he meant, in the present case, that a debtor unable to pay must not be detained in civil prison. But my interpretation does put law and justice on speaking terms. Counsel for the respondent did argue that International Law is the vanishing point of jurisprudence is itself vanishing in a world where humanity is moving steadily, though slowly, towards a world order, led by that intensely active, although yet ineffectual body, the United Nations Organization. Its resolutions and covenants mirror the conscience of mankind and inseminate, within the member States, the progressive legislation, but till this last step of actual enactment of law takes place, the citizen in a world of sovereign States, has only inchoate rights in the domestic Courts while dealing with the international covenants. While dealing with the impact of the Dicean rule of law on positive law, Hood Phillips wrote – and this is all that the Covenant means now for Indian courts administering municipal law: 2 The significance of this kind of doctrine for the English lawyer is that it finds expression in three ways. First, it influences legislators. The substantive law at any given time may approximate to the “rule of law”, but this only at the will of Parliament. Secondly, its principles provide canons of interpretation which express the individualistic attitude of English Courts and of those Courts which have followed the English tradition. They given an indication of how the law will be applied and legislation interpreted. English Courts lean in favour of the liberty of the citizen, especially of his person; they interpret strictly statutes which purport to diminish that liberty, and presume that Parliament does not intend to restrict private rights in the absence of clear words to the contrary. 11. The words which hurt are “or has had since the date of 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 Art. 11 (of the Covenant) and Art. 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. We would have, by this construction, sauced law with justice, harmonised S.51 with the Covenant and the Constitution. 13. In the present case the debtors are in distress because of the blanket distraint of their properties. Whatever might have been their means once, that finding has become obsolete in view of later happenings. Sri Krishnamurthi Iyer for the respondent fairly agreed that the law being what we have stated, it is necessary to direct the executing court to re-adjudicate on the present means of the debtors vis-à-vis the present pressures of their indebtedness, or alternatively whether they have had the ability to pay but have improperly evaded or postponed doing so or otherwise dishonestly committed acts of bad faith respecting their assets. The Court will take note of other honest and urgent pressures on their assets, since that is the exercise expected of the Court under the proviso to S. 51. An earlier adjudication will bind if relevant circumstances have not materially changed.” 4. The proviso to Section 51 CPC specifically states and is couched in negative that no Court shall order detention of judgment debtor in prison in execution of money decree unless it is satisfied of several circumstances as enumerated under sub-clauses (a) to (c) of proviso to Section 51 CPC. 5. The affidavit filed by the petitioner before the executing Court in support of the execution petition consists of only one material paragraph, which is extracted hereunder: “I am the DHr. In the above suit which was decreed on 12.2.2007. The J.Dr. postponing to repay the decretal amount. He is working as a Teacher in Kopalle, Z.P. High School and he is getting Rs.12,000/- and above as monthly salary. He is also having valuable properties and he is having sufficient means to repay my decretal amount, but he is not paying any amount in spite of having valuable properties. Therefore, if the arrest is ordered, he will clear the entire decretal amount.” 6. The judgment debtor filed a counter accepting that he is working as a teacher and drawing salary but he stated that he has no movable and immovable properties and order of arrest will cause irreparable loss. 7. From a reading of the affidavit, extracted above and the circumstances of the case, it cannot be said that the petitioner/decree holder has made out any case on any of the ingredients of sub-clauses (a) to (c) of proviso to Section 51 CPC warranting order of arrest to be passed against the respondent/judgment debtor. I am, therefore, unable to see any error in the approach adopted by the executing Court, especially as it has left the petitioner with a liberty to file a fresh EP seeking attachment of salary of the judgment debtor. In the circumstances, the civil revision petition is accordingly dismissed with the liberty aforesaid. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J October 20, 2011 DSK [1] AIR 1980 SC 470