19bbl052-SHEETL DUBEY

JOLLY GEORGE VERGHESE V. THE BANK OF COCHIN

INTRODUCTION

This case involves profound questions about International law and Constitutional law, Extent
of Intnl covenant's jurisdiction in a nation proprio vigore(on its own). The impugned Section
here is section 51 of CPC, with regards to Art. 21 of Indian Consti. And Art. 11 of ICCPR r/w
Art. 51(c) of Indian Consti.

FACTS

▣ Jolly george (appellant) couldn’t repay the loan he borrowed from the bank of cochin and
his account went to default category.

▣ The bank moved to the local court for the recovery of the sum that Mr. Jolly borrowed.

▣ There were other two decrees against Mr. Jolly (appellant) and total sum to repay was over
Rs. 7 lakhs.

▣ In execution of sum of Rs. 2.5 lakhs, a warrant was issued against the appellant for arrest
and detention under Section 51 and order 21 rule 37 of the CPC. To recover the amount of
loan, the bank attached all the immovable properties of the appellant for sale.

▣ The execution court appointed a receiver for the management of attached assets and
forbidden the bank to manage any attached asset.

▣ The execution court also issued the warrant against the appellant.

▣ The H.C also dismissed the appeal filed by Mr. Jolly against the order of arrest.

▣ Now, Mr. Jolly has filed an appeal under special leave (Article 136 of Constitution of
India) against the decision of H.C.

ISSUES
▣ Whether it is right to enforce a contractual liability by imprisoning a debtor in the teeth of
Art. 11 of the International Covenant on Civil and Political Rights?

▣ Whether it is fair procedure to deprive a person of his personal liberty merely because he
has not discharged his contractual liability in the face of the constitutional protection of life
and liberty?

▣ Whether, in this case, s. 51 has been complied with in its enlightened signification?

JUDGEMENT

Section 51 of cpc: Execution of decree and order Subject to such conditions and limitations
as may be prescribed, the Court may, on the application of the decree-holder, order execution
of the decree-

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison;

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require.

Provided that, where the decree is for the payment of money, execution by detention in prison
shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause
why he should not be committed to prison, the Court, for reasons recorded in writing, is
satisfied- (b) 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.

order 21 Rule 37: where an application is for the execution of a decree for the payment of
money by the arrest and detention in the civil prison of a debtor who is liable to be arrested in
pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue
a notice calling upon him to appear before the Court on a day to be specified in the notice and
show cause why he should not be committed to the civil prison: Provided that such notice
shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object
or effect of delaying the execution of the decree, the debtor is likely to abscond or leave the
local limits of the jurisdiction of the Court, or where here appearance is not made in
obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for
the arrest of the debtor. Article 11 of the International Covenant on Civil and Political Rights.
The Article reads: No one shall be imprisoned merely on the ground of inability to fulfil a
contractual obligation. The Covenant bans imprisonment merely for not discharging a decree
debt. Unless there are some other vice or mens rea apart from failure to foot the decree. India
is now a signatory to this Covenant and Art. 51 (c) of the Constitution obligates the State to
"foster respect for international law and treaty obligations in the dealings of organised
peoples with one another ▣ The process of transformation ▣ National rule is to be
interpreted in accordance with the State's international obligations. ▣ It was argued by the
learned council 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 ▣ Article 11 only interdicts
imprisonment solely on the ground of inability to fulfil the obligation whereas Section 51 also
declares that if the debtor has no means to pay he cannot be arrested and detained. Article 21
of the Constitution of India: Protection of life and personal liberty -No person shall be
deprived of his life or personal liberty except according to procedure established by law.
Effect of international law and enforceability. Article 21, read with Articles 14 and 19,
obligates the State under law to be fair, just and reasonable in its procedural essence. To be
poor is no crime and to "recover" debts by the procedure of putting one in prison is flagrantly
violative of Article 21. Equally meaningful is the import of Art. 21 of the Constitution in the
context of imprisonment for nonpayment of debts. Implication of "or has had since the date
of the decree, the means to pay the amount of the decree".

In fact, the interpretation that is been given to Section 51 of the CPC is similar to Article 11
of the Human Rights Covenants. Law and justice, according to the appellant's attorney, must
coexist in this situation so that a nonpaying debtor is not imprisoned in a civil facility. But
according to my perspective, justice and the law are on friendly terms. The respondent's legal
counsel did make the case that international law is the vanishing point of jurisprudence and
that it is also vanishing in a world where mankind is slowly but steadily establishing a global
order under the direction of the United Nations Organization, an organization that is
incredibly active but yet ineffective. Its resolutions and covenants reflect the conscience of
humanity and insinuate progressive legislation within its member states; however, until this
final stage of the actual enactment of law occurs, a citizen in a world of sovereign States has
only apprehensive rights under these international covenants in domestic courts.

Property rights have been subordinated to personal freedom over the course of civilization,
and the noble expression of this subordination is found in the statement that "No one shall be
imprisoned merely on the ground of inability to fulfil a contractual obligation." The potential
shock that a revived Shylock might experience if a modern Daniel were to render judgment
when the former demands the pound of flesh from Antonio's bosom in accordance with the
terms of the bond, by categorically refusing to inflict mayhem on the debtor because the
inability of an impecunious oblige shall not imperil his liberty or person under the new
dispensation proclaimed by the Universal Declaration, spans this revolutionary change in the
regard for the human person. In light of this progressive viewpoint, we can determine if the
above-quoted Article 11 of the International Covenants and Section 51 of the CPC clash in
any way. As the last clause simply prohibits incarceration if it is requested purely on the basis
of failure to fulfill the commitment. In accordance with Section 51, a debtor who is unable to
pay his debt cannot be held or arrested. He is subject to jail under Section 51 of the Code if
he has already disobeyed or neglected his duty or engaged in actions of bad faith, but this
does not contravene this Article.

The significance of Constitutional Article 21 in the context of incarceration for debt non-
payment is also significant. The State is forbidden from imprisoning people unless the law is
fair, just, and reasonable in its procedural requirements, according to the great value placed
on human dignity and the worth of the human person contained in Articles 21 read with 14
and 19.

CONCLUSION

▣ Jurisdiction of International Law in National Courts.

▣ Principle of Interpretation.

▣ S.51 of CPC r/w O.21,r.37 - prima facie reading -

interpretation

▣ Significance of Covenant

▣ Enforceability at the instance of Individual