18 Oct 2022 12:52 PM GMT
Observing that the arrest of any citizen compromises his right to life and personal liberty, the Delhi High Court has said that the adherence to any procedure, which affects the liberty of the citizen, has to be strict and scrupulous."The arrest of any citizen compromises his right to life and personal liberty, which are the most sanctified of the fundamental rights under Part III of...
Observing that the arrest of any citizen compromises his right to life and personal liberty, the Delhi High Court has said that the adherence to any procedure, which affects the liberty of the citizen, has to be strict and scrupulous.
"The arrest of any citizen compromises his right to life and personal liberty, which are the most sanctified of the fundamental rights under Part III of the Constitution of India. Liberty is a sanctified preambular constitutional goal," Justice C Hari Shankar said.
The court made the observation in an order on a plea filed by Cell Page Communication challenging the issuance of warrants against it by the Additional District Judge in 2019 in an execution proceeding of a money decree. The suit had earlier been decreed in favour of Vijay Shankar Pandey and against the Cell Page Communication for a sum of Rs 25 Lakh with simple interest at 9 percent from May 2014 till filing of the suit and pendente lite.
On December 20, the ADJ had issued warrants of attachment of movable properties of the judgment debtor but the same were received back with the endorsement that "JD has left the given address". The same response was received when notice was issued to the judgment debtor on decree holder's application seeking issuance of warrants. On July 17 in 2019, the ADJ finally issued warrants of arrest. On August 16 in 2019, the ADJ directed the Bailiff to execute the warrants of arrest on or prior to October 01.
It was then that the Cell Page Communication moved an application seeking recall of the August 16 order and cancellation of earlier warrants. It was argued that the decree holder knew that petitioner had an alternative address in Gurgaon as the same was provided in the memo of parties - the earlier notice and warrant were attempted to be served at its New Delhi address. The application was rejected by the ADJ on October 03, 2019.
In the plea before high court against the dismissal order, the judgment debtor's counsel argued that the issuance of warrants of arrest against the petitioner in a case of execution of a money decree could not have been issued without a prior notice to show cause against such proposed arrest. Section 51 read with order XXI Rule 37 and Order XXI Rule 40 of the CPC was cited.
Justice Shankar in the judgement dated October 11 said that the ADJ in the impugned order has noted the content that no show cause notice had ever been issued or served on the petitioner prior to issuance of warrants of arrest and that service of all summons and warrants of arrest had been attempted to be effected at the erstwhile New Delhi office of the petitioner, of which the petitioner was no longer in occupation.
"The learned ADJ observes, nonetheless, that, as the petitioner had contested the suit instituted by the respondent, the petitioner could not plead ignorance of the judgment and decree dated 29th September 2018. Thereafter, the learned further observes as under: Learned Counsel for JD has failed to show as to why JD should not be sentenced to civil imprisonment for non- payment of the decretal amount. Therefore, no case is made out for recalling of order dated 16.08.2019," reads the order.
Earlier, the high court had issued notice on the petition and stayed execution of the warrants of arrest subject to the petitioner deposition a sum of Rs 10 Lakhs with the Registrar General, in addition to an amount of Rs 5 Lakh which already stood deposited. However, petitioner's counsel on October 11 told the court that owing to financial situation, his client has not been able to deposit the Rs 10 Lakh amount as was directed on October 23 in 2019.
Taking up the petition for a final decision, Justice Shankar said there is substance in both the contentions raised by the petitioner's counsel.
"Arrest and detention in prison is one of the modes by which Section 51 permits the executing court to enforce execution of a decree. This power is, however, expressly subject to the proviso to Section 51. It is well settled that a proviso is in the nature of an exception to the main provision. The proviso to Section 51 applies exclusively to a situation in which the decree under execution is a money decree, as in the present case. In such a case, there is an absolute proscription – as is reflected by the use of the words "shall not be ordered" – against execution of a money decree by detention in prison unless the protocol envisaged by the proviso is scrupulously followed," said the court.
The court in this regard relied upon Madras & Southern Maharatta Rly. Co. Ltd. v. Bezwada Municipality, Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha.
Observing that Section 51 prescribes a very rigid protocol before enforcing execution of a simplicitor money decree by detention of the judgment debtor in prison, the court said this protocol is mandatory and non-negotiable.
Further, the court said Order XXI Rule 37 also applies where the execution application seeks execution of a money decree and observed:
Order XXI Rule 37(1) provides that, in the case of an application for execution of a money decree, instead of issuing warrants of arrest of the judgment debtor, the Court shall – thereby indicating the provision to be mandatory – issue of notice to the judgment debtor calling upon him to appear before the Court on a specified date and show cause as to why he be not committed to the civil prison. The proviso to Order XXI Rule 37 relaxes this requirement "if the Court is satisfied, by affidavit or otherwise, and that the object and 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".
The court said it is obvious that insofar as the proviso to Order XXI Rule 37(1) compromises the liberty of the judgment debtor, it has to be subjected to a strict construction. It can apply, therefore, only where the Court, for clear and cogent reasons, satisfies itself that the judgment debtor is likely to abscond or leave the jurisdiction of the Court with the object or effect of delaying the execution of the decree, it added.
"It is only where appearance is not made in response to the notice issued Order XXI Rule 37(1) that Order XXI Rule 37(2) empowers the Court to issue a warrant for arrest of the judgment debtor," said the court.
In its judgement on the case before it, the court said the issuance of warrants of arrest of the petitioner, by the learned ADJ, does not conform to the rigour of the protocol envisaged by Section 51 and Rules 37 and 40 of Order XXI of the CPC. The order passed by the ADJ "quite clearly, is in the teeth of the procedure, envisaged by Section 51 and Rules 37 and 40 of Order XXI of the CPC", said Justice
The court also noted that in the impugned order, the ADJ has noted that the learned Counsel for the petitioner "had failed "to show" – which, apparently, should read "to show cause" – as to why the petitioner be not sentenced to civil imprisonment for non-payment of the decretal amount."
"This indicates that the learned ADJ was conscious of the fact that, prior to issuing of warrants of arrest against the petitioner, an opportunity to show cause against such proposed action was required to be given. The observation that the learned Counsel for the petitioner/judgment debtor had failed to show cause, is contrary to the record, as no opportunity was granted to the petitioner, at the first instance, to show cause against issuance of warrants of arrest. The impugned order, therefore, also appears to have been passed under the mistaken premise that such an opportunity had been granted and the petitioner had not been able to satisfactorily show cause," it added.
Quashing the warrants of arrest of the petitioner, the court said the ADJ would be at liberty to proceed with the matter in accordance with the law, the provisions of the CPC and observation made by it in the judgment.
Title: M/S CELL PAGE COMMUNICAITON v. VIJAY SHANKAR PANDEY
Citation: 2022 LiveLaw (Del) 983