(b) By arrest and detention of Judgement Debtor, Sec. 51(c), C.P.C.
(a) Attachment and sale of property, Section 51(b):
Section 51(b) empowers the Court to order execution of a decree by attachment and sale or by sale without attachment of any property.
The Court is competent to attach the property if it is situated within the local limits of the jurisdiction of the Court. The words attachment and sale in clause (b) of Section 51 are to be read disjunctively. Therefore, the attachment of the property is not a condition precedent.
Hence, sale of property without an attachment is not void or without jurisdiction and does not vitiate the sale. It is merely an irregularity. Rule 54 of Order 21 provides for the attachment of immovable property and the procedure for the proclamation of such attachment.
(b) Arrest and detention, Section 51(c):
As stated above, it is for the decree-holder to decide in which of the several modes he will execute his decree. One of such modes of executing decree is arrest and detention in civil prison of the judgment-debtor. However, clause (c) should be read subject to the proviso to Section 51.
The proviso lays down that where the decree is for payment of money, execution by detention in civil prison should not be ordered unless after giving the judgment-debtor an opportunity of showing cause why he should not be so detained, the Court for the reasons recorded in writing is satisfied:
(i) that the judgment- debtor with the object of obstructing or delaying the execution of the decree (a) is likely to abscond or leave the local limits of the jurisdiction of the Court; or (b) has, after the institution of the suit in which the decree was passed dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property; or
(ii) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same; or
(iii) that the decree is for a sum which the judgment- debtor was bound in a fiduciary capacity to account. These provisions are mandatory in nature and must be strictly complied with. They are not punitive in character. The underlying object of detention of a judgement-debtor in civil prison is twofold.
On the other hand, it enables the decree-holder to realize the fruits of decree passed in his favour; while on the other hand, it protects judgement-debtor who is not in a position to pay the dues for reasons beyond his control or is unable to pay.
Therefore, mere inability to pay the amount does not justify arrest and detention of the judgement-debtor in as much as he cannot be held to have neglected to pay the amount to the decree-holder. The above principle has been appropriately explained by Krishna Iyer, J. in the case of Jolly George Varghese vs. Bank of Cochin, in the following words:
The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it.
The provision emphasizes the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor’s other pressing needs and straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonized Section 51 with the covenant and the Constitution.