KARUNAKARAN PILLAI Vs. JOSEPH

JUDGEMENT

(1.) THE appellant in this case is the judgment-debtor in o. S. No. 48 of 1971 of the Munsiff's Court, Shertallai. In execution of the above decree notice was issued to the appellant under Order XXI R. 37 to show cause why he should not be arrested and detained in prison for non-payment of the decree debt. THE appellant appeared before court and filed objections, one of the objections being that he had no means to pay. However on a subsequent date to which the case stood posted, he paid Rs. 100/ -. Some more amounts were also paid on the adjourned dates. THE case stood posted to 28 91972 for payment of the balance amount. No amount was paid on that day and therefore warrant was issued.

(2.) THE appellant then filed a petition for permitting him to pay the decree debt in instalments. That petition was dismissed. THE order of dismissal was confirmed in appeal and second appeal. In the meanwhile a fresh petition for execution was filed. It was taken up after the disposal of the second appeal. On 23 111974 the court after hearing the parties passed the following order: "heard. Issue warrant. Report 311975" Against the above order an appeal was filed before the District Judge, Alleppey. THE main contention put forward was that the appellant had no means to pay. THE appellate court held that since the appellant had given up the plea of no means and offered to pay the decree debt in instalments he was precluded from putting forward that plea again, and on that ground dismissed the appeal. It is against the above order that the present appeal is filed

(3.) ORDER XXI R. 40 dealing with arrest and detention of the judgment-debtor reads: "40. Proceedings on appearance of judgment-debtor in obedience to notice or after arrest. (1) When a judgment-debtor appears before the Court in obedience to a notice issued under R. 37, or is brought before the court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison. "