Detention in civil prison requires prior inquiry establishing means and wilful refusal or concealment.

An accident involving the offending vehicle on 14 December 2012 resulted in the death of the victim.

The II Additional Motor Accident Claims Tribunal, Gadarwara, passed an award dated 10 July 2015 directing the Insurance Company to first satisfy the compensation awarded to the claimants, with liberty to recover the amount from the vehicle owner and driver under the “pay and recover” principle

During execution, the applicant-driver was served, while the owner remained ex parte.

The applicant’s counsel stated that the applicant had no property or means to satisfy the award.

On 26 September 2024, the Executing Court formed an opinion that the applicant should be confined in civil prison and directed ascertainment of the expenses for such confinement, without conducting a prior enquiry into his means or alleged concealment of assets.

The applicant challenged that order in revision, contending that he was merely the driver and that the owner had not been proceeded against effectively.

Whether the Executing Court could order or initiate the applicant’s detention in civil prison for non-payment of the MACT award without conducting the enquiry required under Section 51 CPC and Order XXI Rules 37 and 40 CPC?

Whether mere non-payment or an assertion of inability to pay was sufficient to justify detention, or whether the decree-holder had to establish that the judgment-debtor possessed sufficient means and wilfully refused or neglected to pay, or had concealed or alienated assets?

Whether the applicant was entitled to an opportunity to disclose his assets and contest the proposed detention before further coercive execution could be ordered?

The Court applied Section 51 CPC, particularly its proviso, which prohibits detention for execution of a money decree unless, after giving the judgment-debtor an opportunity to show cause and recording reasons, the Court is satisfied that the debtor is likely to abscond, has dishonestly transferred or concealed property, has sufficient means but refuses or neglects to pay, or is otherwise liable under the statutory conditions

Order XXI Rule 37 CPC requires issuance of notice to show cause before arrest and detention, subject to the statutory exception concerning likelihood of absconding

Order XXI Rule 40 CPC mandates an enquiry, including hearing the decree-holder, considering evidence, and giving the judgment-debtor an opportunity to show cause before detention is ordered

In Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360, the Supreme Court held that bona fide inability to pay cannot by itself justify imprisonment, as detention must be based on wilful refusal despite sufficient means or dishonest conduct, consistently with Articles 21, 14 and 19 of the Constitution and Article 11 of the International Covenant on Civil and Political Rights

The High Court held that the Executing Court had proceeded solely on the statement that the applicant had no property and on an earlier allegation that he had refused to pay, without determining whether he presently possessed sufficient means, had possessed such means after the decree, had concealed or alienated assets, or was likely to abscond

Since Section 51 CPC and Order XXI Rules 37 and 40 CPC require a meaningful enquiry and an opportunity to show cause, mere default in payment did not satisfy the statutory threshold for civil imprisonment

Applying Jolly George Varghese, the Court emphasised that poverty or bona fide inability to pay cannot be treated as wilful refusal and that the debtor’s present financial circumstances and other pressing liabilities must be considered

The Court directed an asset-disclosure process, under which the applicant would disclose his assets as on the date of the award and on the present date, while the decree-holder could submit contrary information.

Only after this summary enquiry could the Executing Court determine whether detention or any other coercive measure was legally warranted

The order dated 26 September 2024 was set aside to the extent that it contemplated confinement of the applicant in civil prison

The applicant was directed to file affidavits disclosing his assets as on the date of the award and as on the present date, and the decree-holder was permitted to place on record details of any undisclosed assets

The Executing Court was directed to conduct a summary enquiry and thereafter pass appropriate orders, including detention in civil prison if the statutory requirements were established.