TaxTMI 
TaxTMI 
1992 (11) TMI 245
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....le and immovable property found at the spot. Thus warrant of 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 m....
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....ced on the file of this application. I have heard counsel for the 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 ord....
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....Supreme Court in Jolly George Varghese v. Bank of Cochin, 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 w....
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....tion of 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....