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TMI Blog1992 (11) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... attachment was issued. The attachment could not be effected as per report on the warrant of attachment which is exhibit A4. The report is dated May 7, 1985. Contempt proceedings were initiated by the court in view of the report exhibit A-4, against two persons, namely, Rabindra S. Grewal and Dhan Raj. Ultimately, both these persons submitted affidavit copies which are annexures A-2 and A-3. They tendered unqualified apologies for causing directly or indirectly hindrance in the execution of warrant of attachment issued against the judgment-debtor. They sought forgiveness from this court. Thus, in view thereof no further action was taken against the aforesaid two persons by the court. The decree-holders moved the present application Company Appeal No. 59 of 1986 in Execution Petition No. 5/L of 1984 under Order 21, rule 11A read with section 55, read with section 151 of the Code of Civil Procedure for arrest and detention of the managing director of judgment-debtor No. 1, Pan India Plastic (P.) Ltd., which is for disposal. The aforesaid facts have been mentioned in the application. In para 2 of the application it is mentioned that the judgment-debtor did not permit the execution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties. Order 21, rule 11A of the Code of Civil Procedure, 1908, and section 51 of the Civil Procedure Code, read as under : "11A Application for arrest to state grounds. ‑‑ Where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for." "51. Powers of court to enforce execution. ‑‑ 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 {for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section) ; ( 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 by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chin, AIR 1980 SC 470 ; [1982] 52 Comp. Cas. 70, laid down that as long as there is no dishonesty and mala fides on the part of the judgment-debtor to discharge his obligation, committing him to civil prison would amount to violation of article 11 of the International Covenant on Civil and Political Rights and article 21 of the Constitution of India. The aforesaid decision was referred to and relied upon by the Karnataka High Court in K. Karunakar Shetty v. Syndicate Bank [1990] 68 Comp. Cas. 413, 414 ; AIR 1990 Kar. 1, 2 and it was observed as under : "Therefore, it is the decree-holder who has to demonstrate that the judgment-debtor wilfully with the mala fide intention to deprive the benefit of the decree, is refusing (refused) to pay the decretal amount in spite of having sufficient means to pay. The decree-holder has not discharged that obligation by any cogent evidence." The Madras High Court in K.V. Muthu Pathar v. R.S. Mani Rao, AIR 1956 Mad 580, while referring to the provisions of section 51 of the Code of Civil Procedure observed that the court is required to give opportunity to the judgment-debtor showing cause why he should not be committed to pris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the warrant of attachment issued by the court. Reference has been made to the two affidavits ; one filed by Rabindra Grewal and the other by Dhan Raj, exhibits A-2 and A-3 which are almost in the same terms wherein they had stated that they tender unqualified apology for causing directly or indirectly hindrance in the execution of the warrant of attachment issued against the judgment-debtor. They sought forgiveness from this court. These affidavits were submitted when suo motu action was taken by this court to punish them. The contents of the affidavits as mentioned above do not prove any concealment of property by Rabindra Grewal or that he had locked the gate knowingly that attachment was to take effect. Exhibit A-4 is the report of the bailiff made on the warrant of attachment. A perusal of the same would show that when the bailiff along with the representative of the decree-holder went to the house, he found that the outer gate was locked. Rabindra Grewal was not available and was reported to have gone out. Whoever was present there, did not allow entry in spite of the fact that the attachment warrant was shown or read over. The report further shows that since the outer gate wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applied to the case on hand, it is not the case of the decree-holder that the articles mentioned in the house belonged to thee company. A general allegation was mentioned that such articles belonged to the judgment-debtor. Further comment is not being made at this stage as such a question may arise after any articles are attached as to whether the articles belonged to the judgment-debtor company or to the other judgment-debtor individually. Learned counsel for the judgment-debtor also referred to the decision of this court in S. Sikander Singh v. S.A. Builders P. Ltd [1989] 2 PLR 585, wherein it was held that the managing director of the judgment-debtor company could not be arrested under section 55 of the Code of Civil Procedure. The ratio of the decision aforesaid can also be applied to the case on hand. Though in that case the managing director was not shown as the judgment-debtor but in the present case as already stated above Rabindra Grewal was shown as judgment-debtor but as managing director. However, the grounds mentioned under section 51 of the Civil Procedure Code, have not been proved to take any action against the judgment-debtor, Rabindra Grewal, for his det ..... 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