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Report No. 54

Position in the U.S.A.

1E.11. The position in the U.S.A. has been thus1 stated (while discussing recovery of damages):

"In some of the States, in a very limited class of actions for damages (of which the action for damages for personal injury is the chief), the money judgment resulting may be enforced, if proceedings against the property of the debtor are ineffective, by the arrest and imprisonment of the judgment-debtor for a limited period. In practice, owing to technical provisions which cannot here be set forth, the net effect of this remedy is to require the debtor to furnish a bond that he will not for the period mentioned, leave the country; and unless he does so, and the judgment creditor discovers the fact and succeeds in serving certain papers upon the bandsman before the debtor returns to the country, the creditor gains nothing. This remedy is termed as 'execution against the person' and is popularly known as 'body execution'."

1. Mayers The American Legal System, (1964), p. 168.

Situation in section 51(b)

1E.12. Perhaps, it could be argued that imprisonment of the judgment-debtor in the situation in section 51, proviso, clause (b) causes hardship. That clause applies where the judgment-debtor (i) has the means, and refuses or neglects to pay, or (ii) has had the means, and has refused or neglected, to pay. The essential condition in either case is the possession of means, coupled with contemporaneous failure of neglect to pay. Imprisonment, if it follows in such cases, is not based on mere non-payment, nor on mere inability to pay, but is confined to cases where a person is able to pay and dishonestly makes default in payment.

1E.13. It will, thus, be seen that the provisions as to arrest do not violate the provision in, the International Covenant, as they are not based on mere non-fulfilment of a contract. Further, even apart from their consistency with the Covenant, they are justifiable on principle, because the conduct which attracts their operation is dishonest. Technically, no crime is committed, as there is no bodily harm to the decree-holder or direct harm to society But, to deprive another person of his lawful dues when one has the means to pay is, in the special situations to which section 51 proviso, is confined, ultimately causing harm to society, which suffers if an individual member suffers by reason of the dishonest conduct of another member.

Present law sufficiently restrictive

1E.14. We are, therefore, of the view that so far as the cases in which arrest may be ordered are concerned, the law in India is sufficiently restrictive, except in two respects, which we shall presently discuss. This mode of execution should not therefore, be totally abolished.

The situations mentioned in the proviso to section 51, which is the section dealing with arrest in execution of decrees for payment of money-are those which indicate fraud or clandestine designs on the part of the judgment-debtor. Mere inability to perform the obligation to repay a loan (or other monetary obligation) does not result in imprisonment.

1E.15. Imprisonment is not to be ordered merely because, like Shylock, the creditor says1:

"I crave the law, the penalty and forfeit of my bond."

The law does recognise the principle that "Mercy is seasonable in the time of affliction, as clouds of rain in the time of drought".2

1. Merchant of Venice, Ad 4, Scene 1.

2. Ecdesiasticus 35, 20.

Two minor points concerning section 51

1E.16. There are, however, two minor points concerning section 51 on which a clarification is needed.

Section 51, Proviso (a) and (b)

1.E.17. With reference to clause (a) of the proviso to section 51, the words "or effect" (of obstructing or delaying execution) require consideration, as they could be construed as preventing a departure by the judgement-debtor from the local limits of the court even for honest purposes. Removal of those words would increase the burden of proof on the decree-holder. One suggestion placed before us was to make the provision conditional on likelihood as to obstruction etc., so as to reduce the apparent harshness of the present provision.

This is on the assumption that in the context in which the words "object or effect" occur, mens rea with reference to "obstructing or delaying execution" is required. We have, after some discussion, decided that in clause (a), the words "without lawful excuse" should be inserted before the words "leave the local limits". This will protect genuine cases of departure for honest purposes. In section 51, proviso (b) also, before the words "has refused or neglected", we recommend insertion of the words "without lawful excuse", so as to avoid hardship in cases where a person has spent up his money in bone fide lawful objects and therefore, could not pay the debt at the time when the refusal or neglect is alleged to have occurred.

Recommendation

1E.18. Accordingly, we recommend that section 51, proviso, clauses (a) and (b) should be revised as follows:-

"(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree

(i) is likely to abscond or is without lawful excuse, likely to leave the local limits of the jurisdiction of the Court, or

(ii) 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

(b) that the judgment-debtor has, or has had since the date of the decree, means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has without lawful excuse refused or neglected to pay the same, or".

Section 60(1)-property attachable or exempt from attachment

1E.19. Section 60(1) authorises, subject to certain exceptions, the attachment and sale of the property of the judgment-debtor . In the main paragraph of this subsection, after enumerating property liable to attachment, a general principle is enunciated, whereunder, broadly speaking, saleable property which belongs to the judgment-debtor or over which he has a disposing power exercisable for his own benefit, is attachable.

The proviso to section 60(1) enumerates certain properties as exempt from attachment. The exemptions are, for our purposes, more important, and the recommendations which we make for amendment of the law are aimed primarily at the exemptions. Before dealing seriatim with the exemptions, we think it necessary to consider the rationale of the exemptions, such examination will help in determining the area where an addition to or expansion of, the present exemptions is called for.

Principles behind the exceptions

1E.19. What may, at first sight, appear to be a heterogeneous collection of exemptions, enumerated in an haphazard fashion in the proviso to section 60(1), could be more easily understood if it is borne in mind that the exemptions are attributable to one or more of the following broad principles:-

(1) The principle of necessity-The item mentioned in clause (a) of the proviso is based on this principle.

(2) The principle of protecting the means of livelihood-This justifies the exemptions in clause (b), clause (c) 1 and clause (d).

(3) The principle of leaving money required for subsistence-This explains clauses (g), (h), (i), (ia), and (j) and (1).

(4) The principle of thrift-That the State should encourage thrift is the principle behind clause (k).

(5) The principle of non-transferability of the property-Property which is not transferable by act of parties should also not be attachable under legal process. This principle justifies the exemptions in clauses (e), (f), (m) and (n).

(6) The principle of harmony with other laws-This principle accounts for the exemptions in clauses (c) and (p).

We shall now proceed to consider the amendments needed in the proviso.

Section 60(1) and houses of labourers and domestic servants

1E.20. In our view, houses and buildings of labourers and domestic servants should be exempt from attachment,1 on the principle of necessity.

1. Compare section 60(1), provisio (e).

Recommendation as to section 60(1), proviso, clause (c)

1E.20. Accordingly, we recommend that section 60(1), proviso, clause (c) should be revised as follows:-

"(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist, a labourer or a domestic servant, and occupied by him."



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