LI Network
Published on: February 14, 2024 at 12:34 IST
The Madhya Pradesh High Court, seated at Jabalpur, has recently emphasized that a judgment debtor lacking property or means to pay cannot be imprisoned solely based on a money decree against them.
Justice Dwarka Dhish Bansal, in a single-judge bench, stated that poverty itself is not an offence and cited the decision in Jolly George Varghese & Anr v. Bank of Cochin (1980) to support this stance.
The judge highlighted the Supreme Court’s observation in Jolly Varghese, stating, “To be poor, in this land of Daridra Narayan (land of poverty), is no crime, and to recover debts by the procedure of putting one in prison is too flagrantly violative of Art. 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means.”
Additionally, the High Court criticized the executing court for failing to comply with the provisions outlined in Section 51 and Order 21 Rules 37 and 40 of the Civil Procedure Code (CPC).
The Court underscored the importance of following the proper procedure, as stipulated in Rule 40(1) of Order 21, when issuing a show cause notice against detention in a civil prison to the judgment debtor.
The executing court’s oversight in not conducting a thorough inquiry as required by Rule 40 and ignoring the conditions in the proviso to Section 51 CPC led the High Court to set aside the order to commit the judgment debtor to civil prison.
The Court directed the executing court to reconsider the decree holder’s application, ensuring strict compliance with Order 21 Rule 37 CPC.
In the background of this case, the petitioner, a judgment debtor, challenged the order from the 3rd Civil Judge Class-I, Tikamgarh.
The executing Court had issued a show cause notice to the judgment debtor, asking the decree holder to specify the period for which they wanted to send the debtor to civil prison.
The petitioner argued that the executing court erred in hastily sending them to prison without proper consideration of their financial situation.
The High Court found that the executing court did not conduct a thorough inquiry into the petitioner’s financial status, including whether they had property or had transferred it during the pendency of the suit.
Emphasizing the lack of such an inquiry, the High Court stated that it cannot be concluded that the petitioner refused to pay despite having sufficient means.
The Court highlighted the inconsistency in the executing court’s order, which acknowledged the absence of property for recovery but still ordered imprisonment.
