TaxTMI 
TaxTMI 
TaxTMI 
1969 (9) TMI 132
X X X X Extracts X X X X
X X X X Extracts X X X X
.... leaving a large balance and so his arrest and detention in the civil prison was sought by the decree holder. On 20-10-1966 the Court found that the judgment debtor had means to pay the amount of the decree and had neglected to pay it. This order has become final and is not available for attack before me in this second appeal although counsel has claimed that it is amenable to reconsideration for the reason that every time a judgment debtor is, sought to be despatched to the civil prison, there must be a fresh finding about his ability to answer the decree Unfortunately for him, the proviso to S. 51 Civil Procedure Code, even with the humanistic amendment added by Act 21 of 1936, does not go so far. Mere inability to pay does not justify an order for detention in prison. Under the existing law, imprisonment as a means of enforcement of a money decree is available only if there has been some contumacious or unworthy conduct on the part of the judgment debtor, the burden of proving which is on the decree holder. It must be established that the judgment debtor has or has had after the decree was passed, the means to pay the decree amount or a substantial part thereof, it must also be ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he decree and stilt refuses or neglects to pay the same. "Means", in this context, depends on liquid resources or assets which can reasonably furnish such resources. 'Neglect' is something less than refusal but more than mere omission and involves some sort of demand and indifferent response. Thus, if the judgment debtor makes a credible offer to pay in reasonable instalments, it is a negation of "neglect" to pay. I have explained this position at some length in a recent decision in S.A. No. 716 of 1969. Past resources are, under the proviso, sufficient only if there is at that time a refusal or neglect to pay If, for instance, the judgment debtor had at one time means to pay the decree amount but the decree holder did not then move to demand or recover the money, he cannot later rely upon this affluence to levy execution by arrest and detention, if the judgment debtor has by then sunk into straitened circumstances. Past affluence can furnish a ground for arrest and detention in prison only if it is accompanied, in time, with a move for payment by the decree holder and a refusal or neglect by the judgment debtor A finding by Court of the means of the jud....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g the inherent dignity of the human person while applying the municipal law to given situations Counsel rather sentimentally reminded me of the International year for human rights which has just passed and the Gandhi Centenary Year which we are currently passing through and insisted that his client should be immunised from imprisonment on the basis of the Universal Declaration of Human Rights Leaving aside that argument for a moment and paying attention to the provision in the Civil Procedure Code which inhibits arrest of a judgment debtor who is serious ill, I find that this objection has not received serious consideration by the Courts below. The appellant nearly 70 years old. He is suffering from prostate enlargement frequent urination and such like troubles. He has given evidence about the symptoms of his disease. It is not at all uncommon to find old men suffering from prostate enlargement a disease which can become suddenly agonising absence of immediate surgical intervention. In this case, technically speaking, there is no admissible evidence about the judgment debtor's ailment, apart from his ipse dixit. A medical certificate has been produced from a competent doctor in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ot be acted upon by the Court. In this view, the proper course to adopt appears to me to be that the order of the Courts below should be set aside and the execution case sent back to the Court of first instance A fresh enquiry into the objection based upon S. 59, Civil Procedure Code will be made. I need hardly say that this beneficent provision should be construed in a liberal and not narrow way by the executing Court. Both sides will be permitted to lead evidence on the limited point in issue. 7. 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. Art. 11, which I have extracted earlier, grants immunity from imprisonment to indigent but honest judgment debtors. 8. 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 revolu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n v. Government of India (1965 KLT 1076 FB) and Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi (AIR 1967 SC 1836) to convince me that Indian Courts, like the American Courts (332 US 633, Cvamia v. California) and the Supreme Court of Cyprus (See page 122 of the Report of the Commission of Jurists, Vol. IX, December, 1968) have referred to and relied upon the great rights assured by the Articles of the International Covenants. 9. Counsel for the respondent, Shri K.A. Mohammed, dismissed these impassioned submissions as out of manner. The remedy for breaches of International Law in general is not to be found in the law courts of the State because International Law per se or proprio vigore has not the force or authority of civil law, till under its inspirational impact actual legislation is undertaken. I agree that the 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 co....