JOLLY GEORGE VERGHESE & ANR. versus THE BANK OF COCHIN

Citation: [1980] 2 S.C.R. 913 · Decided: 04-02-1980 · Supreme Court of India · Bench: V.R. KRISHNA IYER

Cited by 5 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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JOLLY GEORGE VERGHESE & ANR. 
v. 
THE BANK OF COCHIN 
February 4, 1980 
[V. R. KRISHNA IYER AND R. S. PATHAK, JJ.] 
913 
Code of Civil Procedure-Section 51, 
Ordet 21, 
rule 37-Scope of-' 
Debtor, if could be imprisoned for failure to pay 
his 
deb,/~lmprisonment 
M•hen could be ordered. 
The appellants were the judgment.debtors while the respondent-bank Wes the 
decree·holder. In eixecution of the decree a warrant for arrest and detention in 
civil prison was issued to the appellants under section 51 and order 21, rule 37 
of the Code of Civil Procedure. On an earlier occa.sion there had been a simi· 
Jar warrant for arrest in execution of the same decree. The decree-holders also 
proceeded against the properties of the judgment-debtors and in consequence all 
their immovable properties had been attached for the purpose of sale in dis· 
charge of the decree-debts. A receiver was appointed by the cxecntion court to 
manage the properties under attachment. Even so, the court had issued a warrant 
for the arrest of the judgment-debtors became on an earlier occasion a similar 
warrant bad already been issued without any in.estigation as regards. the cnrrcnt 
ability of the judgment-debtors to clear off the debts or their mala-fide refusal, 
if any, to discharge the debts. 
On the question whether under such circumstances personal freedom of the 
judgment-debtors can be held to ransom until repayment of the debt. 
Allowing the appeal, 
HELD : 1. The words in section 51 which hurt are "or has had since the 
'} ,, date of the decree the means to pay the amount of the decree." Superficially 
""'-- read this implies that if at any time after the passing of en old decree the judg· 
ment-debtor had come by some resources and had not discharged the decree he 
could be detained in prison even though at that later point of time he was 
found to be penniless. This is not a sound position, apart from being inhuman 
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going by the stendards of Article 11 of the International Covenant on Civil and 
]J 
Political Rights and Article 21. 
A 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 moons to 
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pay the decree or a substantial part of it. The provision emphasises the need 
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to establish not mere omission to pay but an attitude of refusal on demand 
verging on dishonest disowning of the obligation under the decree. Considera· 
tions of the debtor's other pressing needs Ond straitened circumstances will play 
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prominently. [922E-GJ 
2. Unless there be some other vice or mens rea apart from failure to foot 
the decree, international law frowns on holding. the debtor's person in civil 
prison, as hostage by the court. India is now a signatory to this Covenant and 
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Article Sl(c) of the Constitution obligates the State to "foster respect for 
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914 
SUPREME COURT REPORTS 
[1980] 2 S.C.R. 
international law am.d treaty obligations in the dealings of organised peoples with 
one another". Even so, until the Municipal Law is 
changed to accommodate 
the Covenant what binds the courts is the former not the latter. [918A-Bl 
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3. Quondom affluence and current indigence without intervening dishonesty 
or bad faith in liquidating his liability can be consistent with Article 11 of th• 
Covenant because then no detention is permissible under section 51 
of the 
Code of Civil Procedure. 
[9210] 
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4. The high value of human dignity and the worth of the human person 
enshrined in Article 21, read with Articles 14 and 19, obligates the State not 
to incarcerate except under law which is fair, just and reasonable in its proce-
dural essence. To cast a person in prison because, of his poverty and come-
quent inability to meet his contractual liability is appalling. To be poor is no 
crime and to "recover" debts by the procedure of putting one in prison is flag-
rantly violative of Article 21 unless there is proof of the minimal fairness of 
bis wilful failure to pay in spite of his sufficient means and absence of more 
terribly pressing claims on his means such as medical bills to treat cancer or 
other grave illness. 
Unreasonableness and unfairness in such a procedure is 
inferable from Article 11 of the Covenant But this is precisely the interpreta-
tion put on the proviso to section 51 C.P.C. and the lethal blow of Article 21 
cannot strik

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