Madras High Court
JUDGMENT Ramaswami, J.
1. This appeal is preferred against the order of the learned Subordinate Judge of Coimbatore in E. P. R. No. 255 of 1954 in O. P. No. 162 of 1949.
2. This case brings forcibly to mind the dictum of their Lordships of the Privy Council in Court of Wards v. Maharajah Kumar Ramaput, 14 Moo Ind App 605 at p. 612 (A), that the woes of an Indian litigant begin only after he has obtained a decree.
3. The appellant before Us, judgment-debtor, Subramania Chettiar is the owner of 300 acres of land of which 30 to 40 acres are nanja lands and the annual rent is about Rs. 10,000/- to Rs. 15,000/-even according to himself. He admits that he also owns and goes about in a motor car. The decree-holder states that this judgment-debtor has got properties worth six to seven lakhs and gets an annual income of Rs. 40,000/- and also owns a motor car. R. W. 2, admittedly a relation of the judgment-debtor has admitted that the judgment-debtor owns lands worth six to seven lakhs of rupees and that he has got also a house.
It may be that the judgment-debtor is unduly depreciating his worth and the decree-holder is unduly exaggerating his worth. But there is sufficient evidence, however, to show that this judgment-debtor is a very well-to-do man indeed.
4. In these circumstances the respondent before us who has obtained a decree in O. S. No. 162 of 1949 against this appellant is seeking to execute it and has not been able to get his decree satisfied owing to the familiar tactics employed by the judgment-debtors to defeat and delay the decree-holders from realising the fruit of their decrees. The following tabular statement will establish this :
28-7-1951.
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Preliminary decree in O.S. 162 of 1949 was obtained in the Sub-Court, Coimbatore.
19-12-1952.
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Final decree for Rs. 32,984-4-8 was obtained.
30.1-1953.
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E. P. NO. 34 of 1953 filed by the decree-holder for attachment and sale of his properties. (Then the judgment-debtor filed A. S. No. 53 of 1953 In the High Court against that decree and applied for stay of execu tion in C. M. P. NO. 5565 Of 1953).
31-7-1953.
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In C. M. P. NO. 5563 Of 1953 the judgment-debtor was directed to deposit half the decree amount and furnish security for the other half within 8 weeks. The Judgment- debtor did not carry out the directions though time was extended twice by the High Court.
E. A. 1261 Of 1953 ...
In E. P. No. 34 Of 1953.
Filed by the judgment-debtor in the Sub-Court. Coimbatore tor stay of all execution proceedings under Madras Ordinance, V o 1854. It was dismissed by the Sub-Court. The Judgment-debtor flled an appeal against that order in C. M. A, No. 322 of 1954 and applied in C. M. P. No. 6297 of 1954 for stay.
18-8-1954.
20-12-1954.
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C. M. A. NO. 323 of 1954 was dismissed. Suit .by the sons of the judgment-debtor and separate possession of their shares.
E. A. NO. 391 of 1954.
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Petition by the sons of the judgment-debtor for. stay of execu-ol the decree so far as r interest were concerned. This was dismissed.
1-11-1954.
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E. P. R. No. 255 of 1964 was filed for arrest of the judgment-debtor.
20-1-1955.
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Arrest ordered in the said execution ' petition. The present appeal is filed against that order.
5. The learned Subordinate Judge when he was asked to order arrest of this judgment-debtor and which is the subject matter of the present order in E. P. R. No. 255 of 1954 now under appeal, he had to consider two points viz., whether the decree-holder had established that the judgment-debtor had sufficient means to pay the decree amount within the meaning of Clause (b) to the proviso to Section 51 of the Code of Civil Procedure and secondly, whether simultaneous execution can be allowed. On both these points the learned Subordinate Judge held against the judgment-debtor and ordered arrest Hence this appeal.
6. Point 1 : That the judgment-debtor has sufficient means to pay the decree debt can admit no doubt whatsoever. His properties apparently seem to be worth 6 to 7 lakhs of rupees consisting of 300 acres of land of which 30 to 40 acres are nanja, buildings, etc. Even if the judgment-debtor's net income is not Rs. 40,000/- as mentioned by the decree-holder and much more than Rs. 10,000/- or Rs. 15,000/- as mentioned by the judgment-debtor, it would certainly be in the region of Rs. 20,000/- at least.
The judgment-debtor wants to get over this possession of ample properties for meeting this decree debt in two ways. First of all he says that he is not realizing any income from the properties regularly. The learned Subordinate Judge who has analysed the evidence of the witnesses examined by him has come to the conclusion in paragraph 7 of his order with which I agree that making every allowance the share of the respondent judgment-debtor in the properties will certainly be very much more than the decree amount and that he has means to pay the decree debt.
Secondly, the judgment-debtor contended that his properties are under attachment and that therefore he cannot dispose of them and pay this decree debt. But as pointed out by the learned Subordinate Judge the judgment-debtor owns about, 300 acres 06 land of which 30 to 40 acres are nanja and that as regards the properties attached it is seen that in E. P. R. No. 34 of 1953, 74 cents of wet land were attached in addition to some other lands and that even if the properties are attached the judgment-debtor can always ask for and would be given permission by the Court to sell properties by releasing a portion and ear-marking the sale price for the discharge of the decree debt.
The judgment-debtor attempted to meet this by stating that there will be no purchasers for the properties which is an absolute falsehood, because the decree-holder undertook to bring purchasers if the judgment-debtor was willing to sell the properties and in fact he would even be prepared to purchase them himself in satisfaction of his decree debt. There fore the conclusion of the learned Subordinate Judge that the decree-holder has affirmatively and satisfactorily shown that the judgment-debtor has the ready as opposed to remote means to pay the decree debt and that he is deliberately evading to do so has been fully established and point I taken by the judgment-debtor fails Atta Karim v. Mt. Bibi Habiba, (B); Jogesh Chandra v. Timkori Datta, AIR 1942 Pat 242 (C); Ponnuswami Chatty v. Narayanaswami Chetty, 25 Mad LI 545: 21 Ind Gas 293 (D); Gubboy v. Ramdoyal, 2 Cal WN 588 (E).
7. In considering whether the decree-holder has affirmatively shown that the judgment-debtor has sufficient means to pay the decree amount and which burden can be discharged either by affirmative evidence or by placing sufficient circumstances before the Court to lead to that inference, the Court should bear in mind what has been laid down in Maddavan Nambiar v. Chaldean Syrian Bank, Ltd., (F), viz., that the Code was amended so as to protect honest debtors of all classes from detention in prison and to confine such provisions to debtors proved to be recalcitrant or fraudulent or contumacious (Marris v. Ingram, per Jessel M. R. (1879) 13 Ch D 338 at p. 343 (G) ), that it applies to all judgment-debtors and the protection is not restricted only to Small debtors, that it is open to a Court to apply a judicial corrective to the extreme lengths to which the onus which the Code casts on decree-holders is sought to be taken by adopting the view that it is perfectly open to an executing Court on the materials placed before it, to come to an inference as regards the statutory findings required by proviso (a) (ii) and (b) of Section 51 of the Code of Civil Procedure.
8. Point 2: That simultaneous execution both against the property & person of the judgment-debtors is allowed under Order XXI, Rule 30 C. P. C., is now settled law. Mahomed Hussain Shah v. Co-operative Society for Loans of Shahpur City, AIR 1943 Lah 166 (H); Uma Kanta v. Benwick & Co., Ltd., (I).
9. But the Court has a discretion under Order XXI, Rule 21 C. P. C., to, refuse simultaneous execution and to allow the decree-holder to avail himself of only one mode of execution at a time. In the circumstances of this case Order XXI, Rule 21 has no relevance. The Privy Council dictum already referred to viz., the difficulties of a litigant in India begin when he has obtained a decree, is the basis for many decisions that a Court is not justified in refusing execution against the person of the judgment-debtor on the ground that the decree-holder should proceed against his property. It is its duty to offer the D. H. all possible and reasonable facilities for realising the decretal amount in as short a time as possible: Damodar Das v. Bindeshwari Singh, AIR 1936 Pat 76 (J).
10. Where therefore a decree-holder presses for arrest of the judgment-debtor, the Court cannot except as provided by the proviso to Section 51 C. P. C., compel the decree-holder to proceed against his property or to accept payment by instalments. Hargobind Kishen Chand v. Hakim Singh & Co., ILR 6 Lah 548: (AIR 1926 Lah 110) (K); Baburao v. Mt. Gopikabai, AIR 1942 Nag 58 (LJ; Dwarka Nath v. Sailaja Kanta, AIR 1918 Cal 186 (M).
11. To sum up, the duty of the Court is to follow the procedure prescribed under Order XXI, Rule 40 C. P. C. and then find if it is satisfied on the evidence that the instant case before it falls within any of the clauses in the provisos (a) to (o). If the case falls within any of the clauses of the proviso then Court has to record its reasons in writing that the judgment debtor should be committed to prison for one of the five reasons set out therein If the cause is insufficient the Court is bound to order arrest. If on the other hand the decree-holder fails in the discharge of his burden to prove that the circumstances specified in the section exist, the Court is equally bound to reject the application.
12. Bearing these principles in mind, if we examine the facts, of this case, we find that the decree-holder is entitled to simultaneous execution. Point 2 fails.
13. There are no merits in this appeal and it is dismissed with costs. The order of the learned Subordinate Judge ordering arrest is confirmed. The stay granted by this Court will stand dissolved and further execution will proceed without further delay.
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