JOLLY GEORGE VERGHESE VS THE BANK OF COCHIN

4 FEBRUARY 1980

SUBMITTED BY

APRAJITA

B.B.A. LL.B. (HONS.)

ROLL NUMBER – 2216

SUBMITTED TO

DR.MEETA MOHINI

FACULTY OF CODE OF CIVIL PROCEDURE.

THIS FINAL DRAFT IS SUBMITTED FOR THE PARTIAL FULFILMENT OF THE

COURSE OF B.B.A LL.B

23rd August, 2021

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

1
ACKNOWLEDGEMENT

It is a fact that any research work prepared, compiled or formulated in isolation is

inexplicable to an extent. This research work, although prepared by me, is a culmination of
efforts of a lot of people who remained in veil, who gave their intense support and helped me
in the completion of this project. Firstly, I am very grateful to my subject teacher Dr. Meeta
Mohini without the kind support and help of whom the completion of this project was a
herculean task for me. She donated his valuable time from his busy schedule to help me to
complete this project. I would like to thank him for his valuable suggestions towards the
making of this project. I am highly indebted to my parents and friends for their kind co-
operation and encouragement which helped me in completion of this project. I am also
thankful to the library staff of my college which assisted me in acquiring the sources
necessary for the compilation of my project. Last but not the least, I would like to thank the
Almighty who kept me mentally strong and in good health to concentrate on my project and
to complete it in time. I thank all of them.

APRAJITA

ROLL NO - 2216

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PROVISION OF CODE OF CIVIL PROCEDURE EXPOUNDED

1) Execution of decrees in India, Section43, 44 of C.P.C.

2) Procedure of executing Decree.
3) Powers of executing court
4) Stay of execution Order 21, Rule 26,27,29 of C.P.C.
5) Mode of execution of decree.
6) Arrest and detention of judgement debtor section 51(c) of C.PC.
7) Attachment of properties section 51(b) of C.P.C.

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TABLE OF CONTENTS

1. INTRODUCTION
2. FACTS OF THE CASE
3. ISSUES DEALT IN THE CASE
4. ARGUEMENTS
5. JUDGEMENT
6. HOW FAR IT IS CONSTITUTIONALLY ACCEPTABLE TO ARREST
SOMEONE INSOLVENT?

7. RELEVANT PROVISIONS
7.1 EXECUTION OF DECREE IN INDIAN COURT UNDER CODE OF
CIVIL PROCEDURE.
7.2 APPLICATION OF EXECUTION
7.3 EXECUTION MAY BE TAKEN OUT AGAINST THE FOLLOWING
PERSON
7.4 STAY OF EXECUTION
7.5 MODES OF EXECUTION
7.6 ARREST AND DETENTION OF JUDGEMENT DEBTOR
7.7 PROCEDURE REGARDING ARREST AND DETENTION OF
JUDGEMENT DEBTOR.

8. RELEVENT CASE LAWS

8.1 MAHADEO PRASAD SINGH & ANR VS RAM LOCHAN & ORS ON 16
SEPTEMBER,1980
8.2 M.A. MALIK VS THIRUVENGADASSWAMI MUDALIAR ON 23
AUGUST, 1949.
9. CONCLUSION
10. BIBLIOGRAPHY

4
INTRODUCTION

 The Bank was the decree-holder. In execution of the decree a warrant for arrest and
detention in civil prison was issued to the appellants under section 51 and order 21,
rule 37 of the Code of Civil Procedure. On an earlier occasion there had been a
similar warrant for arrest in execution of the same decree. The decree-holders also
proceeded against the properties of the judgment-debtors and in consequence all their
immovable properties had been attached for the purpose of sale in discharge of the
decreedebts.
 A receiver was appointed by the execution court to manage the properties under
attachment. Even so, the court had issued a warrant for the arrest of the judgment-
debtors because on an earlier occasion a similar warrant had already been issued
without any investigation as regards the current ability of the judgment-debtors to
clear off the debts or their mala-fide refusal, if any, to discharge the debts. On the
question whether under such circumstances personal freedom of the judgment-debtors
can be held to ransom until repayment of the debt.
 The judgement-debtor (appellants) suffered a decree against them in a sum of Rs. 2.5
lakhs,wherein the respondent-bank was the decree-holder. There were two other
money decreesagainst the appellants, the total sum payable by them amounting to
over Rs. 7 lakhs.In execution of the decree in question (arrears of Rs. 2.5 lakhs), a
warrant was issued to theappellants on 22-6-1972 for arrest and detention in
civil prison under Section 51 and Order21 Rule 37 of the Civil Procedure Code.
 There had earlier been a similar arrest warrant for execution of the same decree.
Besides this process, the decree-holders had also proceeded against the properties of
the judgment-debtors and in consequence, all these immovable properties had been
attached for the purpose of sale in discharge of the decree debts. It is stated that the
execution court has also appointed a Receiver for the management of the properties
under attachment.
 The enjoyment or even the power to alienate the properties by the judgment-debtors
has been forbidden by the court direction keeping them under attachment and

5
appointing a Receiver to manage them. Nevertheless, the court has issued a warrant
for arrest because, on an earlier occasion, a similar warrant had been already issued.
The High Court, in a short order, has summarily dismissed the revision filed by the
judgment-debtors against the order of arrest. The judgement-debtors appealed against
the decision of the High Court by way of Appeal by Special Leave (Article 136 of the
Constitution of India).

6
FACTS OF THE CASE.

 The appellants were the judgment-debtors while the respondent-bank was the decree-
holder.
 The judgment-debtors (appellants) suffered a decree against them in O.S. No. 57 of
1972 in a sum of Rs. 2.5 lakhs, the respondent-bank being the decree-holder. There
are two other money decrees against the appellants (in O.S. 92 of 1972 and 94 of
1974), the total sum payable by them being over Rs. 7 lakhs..In execution of the
decree in question (O.S. 57 of 1972) a warrant for arrest and detention in the civil
prison was issued to the appellants under s. 51 and o.21, r. 37 of the Civil Procedure
Code on 22-6-1979
 Earlier, there had been a similar warrant for arrest in execution of the same decree.
Besides this process, the decree-holders had proceeded against the properties of the
judgment-debtors and in consequence, all these immovable properties had been
attached for the purpose of sale in discharge of the decree debts. It is averred that the
execution court has also appointed a Receiver for the management of the properties
under attachment.
 The enjoyment or even the power to alienate the properties by the judgment-debtors
has been forbidden by the court direction keeping them under attachment and
appointing a Receiver to manage them.
 Nevertheless, the court has issued a warrant for arrest because, on an earlier occasion,
a similar warrant had been already issued. The High Court, in a short order, has
summarily dismissed the revision filed by the judgment-debtors against the order of
arrest.
 No investigation made by the executing court regarding the current ability of the
judgment-debtors to clear off the debts or their mala fide refusal, if any, to discharge
the debts.

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ISSUES DEALT IN THIS CASE

From the above-mentioned facts we can identify various issues, depending on the law
weassess the facts on. Firstly, from the perspective of International Law, whether it is
justified to imprison a person inting 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 detentionin 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
theexecution 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,
dishonestlytransferred, concealed, or removed any part of his property, or committed any
otheract 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.”

Order 21 Rule 37, Civil Procedure Code “(1) Notwithstanding anything in theserules, where
an application is for the execution of a decree for the payment of moneyby the arrest and
detention is the civil prison of a judgment-debtor who is liable to bearrested in pursuance of
the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice
calling upon him to appear before the Court op. a day tobe specified in the notice and show
cause why he should not be committed to the civil prison: Provided that such notice shall not
be necessary if the Court is satisfied, by affidavit,or otherwise, that, with the object or effect
of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the
local limits of the jurisdiction of theCourt.(2) Where appearance is not made in obedience to
the notice, the Court shall, if thedecree-holder so requires, issue a warrant for the arrest of the
judgment-debtor.”

8
ARGUMENTS

The counsel for appellant argued that International Covenant on Civil and Political
Rights became a part of the law of land as soon as the State became a signatory and should be
respected in Municipal courts. Also, the counsel insisted that a debtor unable to pay must
not be detained in prison. The infringement of the appellants right to protection and
personal liberty was also argued as, in the Maneka Gandhi v. Union of India ([1978]
2SCR621), the very same court observed that the fundamental rights should be interpreted in
such a manner so as to expand it sreach and ambit rather than to concentrate its meaning and
content by judicial construction. Article 21 provides that no person shall be deprived of his
life or personal liberty except in accordance with procedure established by law but that does
not mean that a mere semblance of procedure provided by law will satisfy the Article, the
procedure should be just, fair and reasonable. The counsel for the defendant argued that
International law is not to be recognised in Municipal courts unless it is converted to
Municipal form by way of legislation.

JUDGEMENT The Judgment of the Court was delivered by Justice Krishna Iyer, who
pronounced that, This litigation has secured special leave from us because it involves a
profound issue of constitutional and international law and offers a challenge to the nascent
champions of human rights in India whose politicised pre-occupation has forsaken the civil
debtor whose personal liberty is imperilled by the judicial process itself, thanks to s. 51
(Proviso) and O. 21, r. 37, Civil Procedure Code. Here is an appeal by judgement-debtors-the
appellants-whose personal freedom is in peril because a court warrant for arrest and detention
in the civil prison is chasing them for non-payment of an amount due to a bank- the
respondent, which has ripened into a decree and has not yet been discharged The Court’s
judgement can be broken up into the following parts;

9
HOW FAR IT IS CONSTITUTIONALLY ACCEPTABLE TO ARREST SOMEONE
INSOLVENT.

On the issue of International Law, it was held through various examples that the remedy for
the breach of an International Law cannot be found in Municipal courts. This is because, for
an International law to become enforceable it must take up the form of a Municipal law. The
process involves the legislation on a law, drawing inspiration from the International law and
its objective so as to retain the intendedessence. Unless the International law takes a
Municipal form, it does not constitute a part of the ‘corpus juris’ of the State (India).

With regards to the infringement of the appellant’s right to life and liberty as protected under
Article 21 of the Constitution, the Court deemed the arrest and detention to be in violation of
the appellant’s right to life and liberty. This was justified by the courts’s rulings in various
cases such as Sunil Batra v. Delhi Administration (1978CriLJ1741), Sita Ram and Ors.
v. State of U.P. (1979CriLJ659).

From the perspective of international law the question posed is whether it is right to enforce a
contractual liability by imprisoning a debtor in the teeth of Art. 11 of the International
Covenant on Civil and Political Rights. The Article reads: No one shall be imprisoned merely
on the ground of inability to fulfil a contractual obligation. (Emphasis added) An apercu of
Art. 21 of the Constitution suggests the question whether it is fair procedure to deprive a
person of his personal liberty merely because he has not discharged his contractual liability in
the face of the constitutional protection of life and liberty as expanded by a chain of ruling of
this Court beginning with Maneka Gandhi's case. Article 21 reads: 21. Protection of life and
personal liberty.-No person shall be deprived of his life or personal liberty except according
to procedure established by law. A third, though humdrum, question is as to whether, in this
case, s. 51 has been complied with in its enlightened signification. This turns on the humane
meaning of the provision. Some minimal facts may bear a brief narration sufficient to bring
the two problems we have indicated, although we must candidly state that the Special Leave
Petition is innocent of these two issues and the arguments at the bar have avoided virgin
adventures. Even so, the points have been raised and counsel have helped with their
submissions. We therefore, proceed to decide. The facts. The judgment-debtors (appellants)
suffered a decree against them in O.S. No. 57 of 1972 in a sum of Rs. 2.5 lakhs, the
respondent-bank being the decree-holder. There are two other money decrees against the
appellants (in O.S. 92 of 1972 and 94 of 1974), the total sum payable by them being over Rs.

10
7 lakhs..In execution of the decree in question (O.S. 57 of 1972) a warrant for arrest and
detention in the civil prison was issued to the appellants under s. 51 and o.21, r. 37 of the
Civil Procedure Code on 22-6-1979. Earlier, there had been a similar warrant for arrest in
execution of the same decree.

In dealing with the compliance of Section 51 of the Civil Procedure Code, the Court found
that the part of the section that caused the problem was, “…or has had since thedate of the
decree, the means to pay the amount of the decree…” This means that if the judgement-
debtor, after the passing of a decree, came by some means to pay the decree and had not
discharged the decree, he could be detained even if at a later stage he was found to be
penniless. This is not a sound position going by Article 11 (of the Covenant) and Article 21
(of the Constitution). In effect, mere default to discharge is not enough. There must be some
element of bad faith beyond mere indifference to pay, some recusant disposition or, the
current means to pay the decree or a substantial part of it. Here again, the debtor’s pressing
needs will play a prominent role. This construction would have made Section 51 compliant
with the Covenant and the Constitution

Declaration of Human Rights merely sets a common standard of achievement for all peoples
and all nations but cannot create a binding set of rules. Member States may seek, through
appropriate agencies, to initiate action when these basic rights are violated; but individual
citizens cannot complain about their breach in the municipal courts even if the country
concerned has adopted the covenants and ratified the operational protocol. The individual
cannot come to Court but may complain to the Human Rights Committee, which, in turn, will
set in motion other procedures. In short, the basic human rights enshrined in the International
Covenants above referred to, may at best inform judicial institutions and inspire legislative
action within member-States; but apart from such deep reverence, remedial action 920 at the
instance of an aggrieved individual is beyond the area of judicial authority. While considering
the international impact of international covenants on municipal law, the decision concluded:
Indeed the construction I have adopted of s. 51, CPC has the flavour of Article 11 of the
Human Rights Covenants. Counsel for the appellant 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

11
United Nations Organisation. Its resolutions and covenants mirror the conscience of mankind
and insominate, within the member States, 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 under these international covenants.

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PROVISIONS

Section 42 of Code of Civil Procedure 1908 "Power of Court in executing transferred

decree"

1[(1)] The Court executing a decree sent to it shall have the same powers in executing such
decree as if it had been passed by itself. All persons is disobeying or obstructing the
execution of the decree shall be punishable by such Court in the same manner as if it had
passed the decree. And its order in executing such decree shall be subject to the same rules in
respect of appeal as if the decree had passed by itself. Without prejudice to the generality of
the provisions of sub-section (1), the powers of the Court under that sub-section shall include
the following powers of the Court which passed the decree, namely: -

(a) power to send the decree for execution to another Court under section 39;

(b) power to execute the decree against the legal representative of the deceased judgment-
debtor under section 50;

(c) power to order attachment of a decree.

(3) A Court passing an order in exercise of the powers specified in sub-section (2) shall send
a copy thereof to the Court which passed the decree.

(4) Nothing in this section shall be deemed to confer on the Court to which a decree is sent
for execution any of the following powers, namely:-

(a) power to order execution at the instance of the transferee of the decree ;

(b) in the case of a decree passed against a firm, power to grant leave to execute such decree
against any person, other than such a person as is referred to in clause (b),or clause (c), of
sub-rule(1) of rule 50 of Order XXI.] (c) power to order attachment of a decree.

13
EXECUTION OF DECREE IN INDIAN COURT UNDER CODE OF CIVIL
PROCEDURE.

The term “execution” has not been defined in the Code. In its widest sense, the expression
“execution” signifies the enforcement or giving effect to a judgment or order of a Court of
justice. Stated simply, “execution” means the process for enforcing or giving effect to the
judgment of the Court. In other words, execution is the enforcement of decrees and orders by
the process of the Court, so as to enable the decreeholder to realise the fruits of the decree.
The execution is complete when the judgmentcreditor or decree-holder gets money or other
thing awarded to him by the judgment, decree or order.1 In Ghan Shyam Das v. Anant Kumar
Sinha, (1991) 4 SCC 379, dealing with the provisions of the Code, relating to execution of
decrees and orders, the Hon’ble Supreme Court stated: “So far the question of executability
of a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive
provisions for dealing with it in all its aspects. The numerous rules of order XXI of the Code
take care of different situations, providing effective remedies not only to judgment-debtors
and decree-holders but also to claimant objectors as the case may be. In an exceptional case,
where provisions are rendered incapable of giving relief to an aggrieved party in adequate
measure and appropriate time, the answer is a regular suit in the civil court. The remedy
under the Civil Procedure Code is of superior judicial quality than what is generally available
under other statutes, and the Judge being entrusted exclusively with admin- istration of
justice, is expected to do better.” In Satyawati v. Rajinder Singh & Anr., (2013) 9 SCC 491,
the Hon’ble Supreme Court held that there should not be unreasonable delay in execution of a
decree because the decree-holder is unable to enjoy the fruits of his success by getting the
decree executed, the entire effort of successful litigant would be in vain. Scheme of
Execution: Important Heads

i. Courts which may Execute Decrees

ii. Application for Execution
iii. Stay of Execution
iv. Mode of Execution
v. Arrest and Detention
vi. Attachment of Property

1
(See: Overseas Aviation Engg. (G.B.) Ltd. In re, (1962) 3 WLR 594)
14
Section 37: Definition of Court which passed a decree. The section enlarges the scope of the
expression “court which passed a decree” with the object of giving greater facilities to a
decree-holder to realise the fruits of the decree passed in his favour. The following courts fall
within the said expression: The court of first instance which actually passed the decree; The
court of first instance in case of appellate decrees; Where the court of first instance has
ceases to exist, the court which would have jurisdiction to try the suit at the time of
execution; and Where the court of first instance has ceased to have jurisdiction to execute
the decree, the court which at the time of execution would have had jurisdiction to try the
suit. (See: Ramankutty Guptan v. Avara, (1994) 2 SCC 642) B. Section 38: Court by which
decree may be executed. A decree may be executed either by the Court which passed it, or by
the Court to which it is sent for execution. Where the court of first instance has ceased to
exist or ceased to have jurisdiction to execute the decree, the decree can be executed by the
court which at the time of making the execution application would have jurisdiction in the
matter. (See: Merla Ramanna v. Nallaparaju, AIR 1956 SC 87) C. Transfer of Decree for
Execution: Sections 39-42, Order XXI Rules 3-9 Section 39 provides for the transfer of a
decree by the Court which has passed it and lays down the conditions therefor. As a general
rule, the Court which passed the decree is primarily the court to execute it, but such court
may send the decree for execution to another court either suo moto or on the application of
the decree-holder if any of the following grounds exist: The judgment-debtor actually and
voluntarily resides or carries on business, or personally works for gain, within the local limits
of the jurisdiction of such court; or The judgment-debtor does not have any property
sufficient to satisfy the decree within the local limits of the jurisdiction of the court which
passed the decree but has property within the local limits of the jurisdiction of such other
court; or The decree directs the sale or delivery of immovable property situate outside the
local limits of the jurisdiction of such other court; or The Court which passed the decree
considers for any other reason to be recorded in writing, that the decree should be executed
by such other court.

• The provisions of section 39 are, however, not mandatory and the court has discretion in
the matter which will be judicially exercised by it2. In Tarachand v. Misrimal, AIR 1970 Raj
53, the Hon’ble Rajasthan High Court observed that: “Sec. 39 has been enacted for the
purpose that it will be more convenient for a court which passed a decree to get it executed
by a court within the local limits of whose jurisdiction the person resides or the property is

2 2
. Tarachand v. Misrimal, AIR 1970 Raj 53

15
situate in cases mentioned in cls. (a) to (c), but it does not debar a court which passed a
decree itself to execute it if the circumstances of the case so warrant or it has the means to do
so. We do not mean to say that the court which passed a decree should itself embark upon
executing the decree under all circumstances in cases provided in cls. (a) to (c) of sec. 39(1).
Normally it will send for execution to the court within the local limits of whose jurisdiction
the defendant resides or the property is situate, but it has the jurisdiction to proceed to
execute it.” D. Execution of Foreign Decrees in India: Sections 43-44A. A combined
readings of sections 43-44A shows that Indian courts have power to execute the decrees
passed by: Indian courts to which the provisions of the code do not apply; The courts situate
outside India which are established by the authority of the Central Government; Revenue
courts in India to which the provisions of the code do not apply; and Superior courts of any
reciprocating territory. E. Section 42: Powers of Executing Court. It expressly confers upon
the court executing a decree sent to it the same powers the same powers as if it has been
passed by itself. It is thus the power and duty of the executing court to see that the defendant
gives the plaintiff the very thing the decree directs and nothing more or nothing less 3. •
Other powers were: • Power to send the decree for execution to another Court U/s 39; •
Power to execute the decree against the legal representative of the deceased judgment-debtor
U/s 50; • Power to order attachment of a decree.

APPLICATION FOR EXECUTION Execution is the enforcement of a decree by a judicial

process which enables the decree-holder to realise the fruits of the decree passed by a
competent court in his favour. All proceedings in execution commence with the filing of an
application for execution. • Rules 10-25 and 105-106 of Order XXI deals with execution
applications. The following persons may file an application for execution:

Legal Representatives of the decree-holder, if the decree-holder is dead.

Representative of the decree-holder.

Any person claiming under the decree-holder.

Transferee of the decree-holder, if the following conditions are satisfied namely, (a) The
decree must have been transferred by an assignment in writing or by operation of law; (b)
The application for execution must have been made to the court which passed the decree; and

3
Jai Narain v. Kedar Nath, AIR 1956 SC 359 at p. 363

16
(c) Notice and opportunity of hearing must have been given to the transferor and the
judgment-debtor in case of assignment by transfer.

EXECUTION MAY BE TAKEN OUT AGAINST THE FOLLOWING PERSONS:

• Judgment-debtor.

• Legal Representatives of the judgment-debtor, if the judgment-debtor is dead. (They shall,

however, be liable to the extent of the property of the deceased judgment-debtor which has
come to their hands).

• Representative of or the person claiming under the judgment-debtor.

• Surety of the judgment-debtor. E. Contents of Application: Rule 11

• Except in the case of a money decree, every application for execution shall be in writing,
signed and verified by the applicant or by some other person acquainted with the facts of the
case. It shall contain the necessary particulars like the number of the suit, the names of the
parties, the date of the decree, the amount of the decree etc. F. Form

• An application for execution shall be in Form No. 6 of Appendix E to the First Schedule.
But even if an application is not in the proper form, the defect is not vital or material.4 G.
Limitation • The period of limitation for the execution of a decree (other than a decree
granting a mandatory injunction) is 12 years from the date of the decree (Art. 136, Limitation
Act, 1963). • The period of limitation for the execution of a decree for mandatory injunction
is 3 years from the date of the decree (Art. 133, Limitation Act, 1963).

STAY OF EXECUTION

When Court may stay execution?: Rule 26 This rule lays down that the executing court shall,
on sufficient cause being shown and on the judgment-debtor being furnishing security or
fulfilling such conditions, as may be imposed on him, stay execution of a decree for a
reasonable time to enable the judgment-debtor to apply to the court which has passed the
decree or to the appellate court for an order to stay execution. The power to stay execution
of a decree by a transferee court is not similar to the power of the court which passes a

4
(See: Jiwani v. Rajmata Basantika Devi, AIR 1994 SC 1286).
17
decree. A transferee court cannot invoke inherent power to grant stay.5 • Where the
judgment-debtor applies for stay of execution, the transferee court must obtain security from
the judgment-debtor or impose such conditions as it may think fit. The provision is thus
mandatory and imperative. [See: Order XXI Rule 26(3)]

Quashing of order means that no such order had ever been passed and there is restoration of
position as it stood prior to the passing of the order. Stay of order, however, means that the
order is very much there, but its operation is stayed.6. C. Stay of Execution pending suit:
Rule 29 • It provides for stay of execution pending suit between the decree-holder and the
judgment-debtor. It enacts that where a suit by the judgment-debtor is pending in a court
against the decree-holder such court may, on the judgment-debtor furnishing security or
otherwise as it thinks fit, stay execution of the decree until the disposal of such suit. • The
underlying object of this provision is two-fold:

• To enable the judgment-debtor and the decree-holder to adjust their claims against each
other; and

• To prevent multiplicity of execution proceedings.

For this rule to apply, there must be two simultaneous proceedings in one court: A
proceeding in execution of the decree at the instance of the decree-holder against the
judgment-debtor; and A suit at the instance of the judgment-debtor against the decree-
holder.7 Order of Injunction and Order of Stay: Distinction. The former is an order against a
person or an individual restraining him from doing something. The latter is a direction or an
order to a court not to do something. Proceedings taken in contravention of injunction order
are not null and void being without jurisdiction. Proceedings in contravention of an order of
stay, on the other hand are a nullity and of no effect whatsoever.

5
(See: Shaukat Hussain v. Bhuneshwari Devi, AIR 1973 SC 528).
6
(See: Shree Chamundi Mopeds Ltd. v. Church of South India Trust Assn., AIR 1992 SC 1439)
7
(See: Shri Krishna Singh v. Mathura Ahir, AIR 1982 SC 686).

18
MODE OF EXECUTION

• The Code lays down various modes of execution. After the decree-holder files an
application for execution of a decree, the executing court can enforce execution. The
substantive provision (Section 51) “merely enumerates different modes of execution in
general terms, while the conditions and limitations under which alone the respective modes
can be availed of are prescribed further by different provisions.” (Order XXI). 8

Modes of Executing Decrees

• Delivery of Property: Section 51(a)

• Movable Property: Section 51(a), Rule 31 Where the decree is for any specific movable
property, it may be executed (I) by seizure and delivery of property; or (ii) by detention of the
judgment debtor; or (iii) by attachment and sale of his property; or (iv) by attachment and
detention both. It does not include money, and, therefore, a decree of money cannot be
executed under Rule 31.

• Immovable Property: Rules 35 and 36 Rules 35 and 36 correspond to Rules 95 and 96

which lay down the procedure for delivery of possession to the auction-purchaser who has
purchased the property in an auction-sale. Where the decree is for immovable property in the
possession of the judgment-debtor or in the possession of the person bound by the decree, it
can be executed by removing such person and by delivering possession to the decree-holder
thereof.

Attachment and Sale of Property: Section 51(b) Section 51(b) empowers the Court to
order execution of a decree by attachment and sale or by sale without attachment of any
property. The Court is competent to attach the property if it is situated within the local limits
of the jurisdiction of the court.

Arrest and detention: Section 51(c) • One of the modes of executing the decree is arrest and
detention in civil prison of the judgment-debtor. However, clause (c) should be read subject
to the proviso to Section 51. The proviso lays down that where the decree is for payment of
money, execution by detention in civil prison should not be ordered unless, after giving the
judgment-debtor an opportunity of showing cause why he should not be so detained, the court

8
(See: Mahadeo Prasad v. Ram Lochan, AIR 1981 SC 416 at p. 421)

19
for reasons to be recorded in writing is satisfied: • 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 pare of his property, or committed any other
act of bad faith in relation to his property; 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 that the decree is for a sum for which the judgment-debtor was bound in a
fiduciary capacity to account.

Appointment of Receiver: Section 51(d) Execution by appointment of a receiver is known

as equitable execution and is entirely at the discretion of the court. It cannot be claimed as a
matter of right.9 The appointment of a receiver in execution proceedings is considered to be
an exceptional remedy and a very strong case must be made out in support of it. In such other
manner as the nature of the relief granted may require.

9
(See: Onkarlal v. V.S. Rampal, AIR 1961 Raj. 179)

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ARREST AND DETENTION

One of the modes of executing a decree is arrest and detention of the judgmentdebtor in a
civil prison. • Sections 55-59 and Rules 30-41 deals with arrest and detention of the
judgmentdebtor in a civil prison.

A. When arrest and detention may be ordered?

• Where the decree is for payment of money.
• Where the decree is for specific performance of the contract or for injunction.
• Where the decree is against a Corporation.
B. Who cannot be arrested?: Sections 56, 58, 135, 135-A
C. • The following classes of persons cannot be arrested or detained in civil prison: A
woman; Judicial officers, while going to, presiding in, or returning from their courts;
The parties, their pleaders, mukhtars, revenue agents and recognized agents and their
witnesses acting in obedience to a summons, while going to, presiding in, or returning
from their courts; Members of Legislative Bodies; Any person or class of persons,
whose arrest according to the State Government, might be attended with danger or
inconvenience to the public; A judgment-debtor, where the decretal amount does not
exceed Rs. 2000. D. Notice: Order XXI Rules 37 and 40. Where the decree is for the
payment of money and the application is made for the arrest and detention of the
judgment-debtor, the Court shall instead of issuing a warrant for arrest, issue a notice
calling upon the judgment-debtor to appear and show cause why he should not be
committed to civil prison in execution of the decree. The purpose of issuing notice is
to afford protection to the honest debtors incapable of paying dues for reasons beyond
their control.The provision for issuing notice and affording opportunity to the
judgment-debtor to show cause recognizes a rule of natural justice that no person
should be condemned unheard.
D. • The primary object of Rule 40 read with Rule 37 of Order XXI and Section 51 of
the Code is to protect honest but indigent and poor judgment-debtors, who have no
sufficient means to pay decretal dues.
E. Period of Detention: Section 58 • The period of detention of the judgment-debtor in
civil prison shall be (a) up to three months, where the decretal amount exceeds Rs.
5000 and (b) up to six weeks, where the decretal amount exceeds Rs. 2000 but does
not exceed Rs. 5000. Where the decretal amount does not exceed Rs. 2000 no
detention can be ordered. Release of Judgment Debtor: Section 58-59 .A judgment

21
 debtor may be released in the following cases. On the amount mentioned in the
warrant being paid; or On the decree against him being otherwise fully satisfied; or
On the request of the decree-holder; or On the omission by the decree-holder to pay
the subsistence allowance (such release, however does not discharge the judgment
debtor from his debt, but he cannot be rearrested on the same ground); On the ground
of illness. Re-arrest of Judgment-Debtor
F. • Normally, a judgment-debtor once released, cannot be re-arrested in the execution of
the same decree. But if a judgment-debtor is released because of the mistake of the
jail authorities, he can be re-arrested. Similarly, where the judgment-debtor could not
be sent to jail, due to non payment of the subsistence allowance by the decree-holder,
his re-arrest is not unlawful. Again, release of the judgment-debtor on the ground of
illness does not debar his arrest. The total period of actual detention, however, cannot
exceed the maximum prescribed in the Code.

22
RELEVENT CASE LAWS

MAHADEO PRASAD SINGH & ANR VS RAM LOCHAN & ORS ON 16

SEPTEMBER,1980

In the light of the above principles, the question posed for our decision, resolves itself into the
two-fold issue : whether the decree-holder had acquired a substantive right (a) to get the
decree passed by the Court of Small Causes, transferred to the Court of the Munsif and (b)
thereafter to have is executed by the transferee Court in any of the modes provided
in Section 51 of the Code of Civil Procedure, including the mode by attachment and sale of
the immovable property of the judgment-debtor.

It appears to us that none of these contentions stands a close examination. It may be noted
that the fasciculus of Sections 51 to 54 of the Code of Civil Procedure appear under the
heading "PROCEDURE IN EXECUTION". Section 51 is captioned-"Powers of Court to
enforce execution". It reads thus :"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 by delivery of any property specifically decreed;

M.A. MALIK VS THIRUVENGADASSWAMI MUDALIAR ON 23 AUGUST, 1949.

1. In misfeasance proceedings taken by the liquidator during the course of a winding up of a

company of which the appellant was a Director for a year or so, this Court on the Original
Side directed that the appellant do pay the Official Liquidator the sum of Rs. 2,991-14-0 and
Rs. 4,866-6-0 being the amounts of loss occasioned in respect of the share brokerage,
preliminary expenses and investments in unauthorised banks respectively....

The respondent having taken an assignment of the decree proceeded against the appellant in
execution and applied to the Court for his arrest. The question arose whether
under Section 51, Civil Procedure Code, the respondent was liable for arrest. He pleaded
that he was a pauper and was quite unable to raise the money to discharge the decree. The
Court however found that since he was a Director and it was on account of his breach of duty
that the loss had been sustained by the company, Clause (c) of the proviso

23
to Section 51 applied, and that the decree is for a sum for which the judgment-debtor was
bound in a fiduciary capacity to account.

24
CONCLUSION

The words in section 51 implies 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 Article 11 of the
International Covenant on Civil and Political Rights and Article 21. A 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. Considerations of the debtor's other pressing needs and
straitened circumstances will play prominently.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 Article
51(c) of the Constitution obligates the State to "foster respect for international law and treaty
obligations in the dealings of organised peoples with one another". Even so, until the
Municipal Law is changed to accommodate the Covenant what binds the courts is the former
not the latter. Quondom affluence and current indigence without intervening dishonesty or
bad faith in liquidating his liability can be consistent with Article 11 of the Covenant because
then no detention is permissible under section 51 of the Code of Civil Procedure. The high
value of human dignity and the worth of the human person enshrined in Article 21, read with
Articles 14 and 19, obligates the State not to incarcerate except under law which is fair, just
and reasonable in its procedural essence. To cast a person in prison because of his poverty
and consequent inability to meet his contractual liability is appalling. To be poor is no crime
and to "recover" debts by the procedure of putting one in prison is flagrantly violative of
Article 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of
his sufficient means and absence of more terribly pressing claims on his means such as
medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a
procedure is inferable from Article 11 of the Covenant. But this is precisely the interpretation
put on the proviso to section 51 C.P.C. and the lethal blow of Article 21 cannot strike down
the provision as interpreted. [922A-D] JUDGMENT: CIVIL APPELLATE JURISDICTION:
Civil Appeal No. 1991 of 1979. Jolly George Verghese & Anr vs The Bank Of Cochin on 4
February, 1980 Indian Kanoon - http://indiankanoon.org/doc/1741605/ 2 Appeal by special

25
leave from the Judgment and Order dated 9-7-1979 of the Kerala High Court in C.R.P. No.
1741 of 1979. M. M. Abdul Khader and K. M. K. Nair for the Appellants. K. M. Iyer and V.J.
Francis for the Respondent. The Judgment of the Court was delivered by KRISHNA IYER.
J.-This litigation has secured special leave from us because it involves a profound issue of
constitutional and international law and offers a challenge to the nascent champions of human
rights in India whose politicised pre-occupation has forsaken the civil debtor whose personal
liberty is imperilled by the judicial process itself, thanks to s. 51 (Proviso) and O. 21, r. 37,
Civil Procedure Code. Here is an appeal by judgement-debtors-the appellants-whose personal
freedom is in peril because a court warrant for arrest and detention in the civil prison is
chasing them for non-payment of an amount due to a bank- the respondent, which has ripened
into a decree and has not yet been discharged. Is such deprivation of liberty illegal? Besides
this process, the decree-holders had proceeded against the properties of the judgment-debtors
and in consequence, all these immovable properties had been attached for the purpose of sale
in discharge of the decree debts. It is averred that the execution court has also appointed a
Receiver for the management of the properties under attachment. In short, 916 the enjoyment
or even the power to alienate the properties by the judgment-debtors has been forbidden by
the court direction keeping them under attachment and appointing a Receiver to manage
them. Nevertheless, the court has issued a warrant for arrest because, on an earlier occasion, a
similar warrant had been already issued. The High Court, in a short order, has summarily
dismissed the revision filed by the judgment-debtors against the order of arrest. We see no
investigation having been made by the executing court regarding the current ability of the
judgment-debtors to clear off the debts or their mala fide refusal, if any, to discharge the
debts. The question is whether under such circumstances the personal freedom of the
judgment-debtors can be held in ransom until repayment of the debt, and if s. 51 read with O.
21, r. 37, C.P.C. does warrant such a step, whether the provision of law is constitutional.
tested on the touchstone of fair procedure under Art. 21 and in conformity with the inherent
dignity of the human person in the light of Art. 11 of the International Covenant on Civil and
Political Rights. A modern Shylock is shacked by law's humane hand-cuffs. At this stage, we
may notice the two provisions. Section 51 runs thus: 51. 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; (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

26
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 917 (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 sine 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. (Emphasis added) We may here read also
order 21 Rule 37: 37. (1) Notwithstanding anything in these rules, where an application is for
the execution of a decree for the payment of money by the arrest and detention in the civil
prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the
Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to
appear before the Court on a day to be specified in the notice and show cause why he should
not be committed to the civil prison: Jolly George Verghese & Anr vs The Bank Of Cochin
on 4 February, 1980 Indian Kanoon - http://indiankanoon.org/doc/1741605/ 4 Provided that
such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that,
with the object or effect of delaying the execution of the decree, the judgment-debtor is likely
to abscond or leave the local limits of the jurisdiction of the Court. (2) Where appearance is
not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a
warrant for the arrest of the judgment-debtor. Right at the beginning, we may take up the
bearing of Art. 11 on the law that is to be applied by an Indian Court when there is a specific
provision in the Civil Procedure Code, authorising detention 918 for non-payment of a decree
debt. 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 organised peoples with
one another". Even so, until the municipal law is changed to accommodate the Covenant

27
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
count.. With regard to interpretation, however, it is a principle generally recognised in
national legal system 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 on the same point. In that case, a judgment-debtor was sought to be
detained under O. 21, r. 37 C.P.C. although he was seventy and had spent away on his illness
the means he once had to pay off the decree. The observations there made are apposite and
may bear exception: The last argument which consumed most of the time of the long
arguments of learned counsel for the appellant is that the International Covenants on Civil
and Political Rights are part of the law of the land and have to be respected by the Municipal
Courts. Article 11, which I have extracted earlier, grants immunity from imprisonment to
indigent but honest judgment-debtors. The march of civilization has been a story of
progressive subordination of property rights to personal freedom; and a by-product of this
subordination finds noble expression in the declaration that "No one shall be imprisoned
merely on the ground of inability to fulfil a contractual obligation." This revolutionary
change in the regard for the human person is spanned by the possible shock that a resuscitated
Shylock would suffer if a modern Daniel were to come to judgment when the former asks the
pound of flesh from Antonio's bosom according to the tenor of the bond, by flatly refusing
the mayhem on the debtor, because the inability of an impecunious oblige shall not imperil
his liberty or person under the new dispensation proclaimed by the Universal Declaration of
Human Rights. Viewed in this progressive perspective we may examine whether there is any
conflict between s. 51 CPC and Article 11 of the International Covenants quoted above. As
already indicated by me, this latter provision only interdicts imprisonment if that is sought
solely on the ground of inability to fulfil the obligation. Section 51 also declares that if the
debtor has no means to pay he cannot be arrested and detained. If he has and still refuses or
neglects to honour his obligation or if he commits acts of bad faith, he incurs the liability to
imprisonment under s. 51 of the Code, but this does not violate the mandate of Article 11.

28
BIBLIOGRAPHY

BOOKS

Bare act, code of civil procedure.

Civil procedure by C.K. Takwani.

Civil procedure code by Avatar singh

WEBSITES

www.manupatra.ac.in

www.lexisnexis.in

www.scconline.in

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