Jolly George Varghese vs.

Bank of Cochin, AIR 1980

SC 470
By Amber Singh
Facts
• This is an appeal by the appellants-whose personal freedom is in peril. This is because a
court warrant for arrest and detention in the civil prison is chasing them for non-
payment of an amount due to a bank. And bank is the respondent, which has ripened
into a decree and has not yet been discharged. The appellants suffered a decree against
them in a sum of Rs. 2.5 lakhs, the respondent being the decree-holder. There are two
other money decrees against the appellants. The total sum payable by them is over Rs. 7
lakhs.
• On August 6th, 1979, a warrant of arrest and detention in the civil prison was issued to
the appellants under S. 51 and o.21, r. 37 of Civil Procedure Code. This was in the
execution of the decree in question. Moreover, previously a similar warrant for arrest
was produced in the execution of the same decree.
Facts
• Immovable properties of the judgment-debtor had been attached for sale in the
discharge of the decree debts by the decree-holders.
• When the case was brought up in the High Court, the appeal filed by the appellants
regarding the order of arrest was dismissed without careful examination of the
conditions and requirements for such arrest to take place. As per the legislation, a
proper investigation must have taken place by the executing court to assess the financial
standing of the appellant to clear off the debts or surface their mala fide intention
behind the refusal, if any.
 • Whether it is a fair procedure to deprive a person
of his liberty because he has not discharged his
contractual liability?
Issues • Should under the given circumstances the personal
freedom of the appellant can be held in ransom
until repayment of the debt, and if S. 51 read with
O. 21, r. 37, C.P.C. does warrant such a step?
Judgement
• The Court held that the International Law that the remedy for breach of International
Law can’t be found in Municipal Courts. The reason behind this is that for enforceability
of international law it must first take the form of Municipal Law. It was held that
international law must first take the form of municipal law it shall not constitute a part of
the corpus juris of the State.
• The Court held that the arrest and detention violated the appellant’s right to life and
liberty.
Judgement
• It was held that the language of Section 51 was stating that if at a later stage the
respondent fails to discharge the decree he shall be arrested. This is not in line with
Article 11 (of the Covenant) and Article 21 (of the Constitution). The mere default to
discharge is not enough to arrest a person, there should be malice present in the
appellants’ act.
• The Court directed the executing court to re-adjudicate on how the appellant wants to
pay in the pressure of debt and if they could pay but were postponing the payment or
committed an act of bad faith. The pressure shall be put on the property of the appellant
as per the Section 51s provision.