KESAVA PILLAI KARUNAKARAN PILLAI Vs. OUSEPH 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, Rule 37 to show cause why he should not be arrested and detained in prison for nonpayment of the decree debt. The appellant appeared befpre 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 28th September, 1972 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 dis-missed. 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 23rd November, 1974 the Court after hearing the parties passed the following order; "heard. Issue warrant. Report 3rd January, 1975. " 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.) ASSUMING that the judgment-debtor did not press the objection regarding means, the further question is whether that alone would entitle the decree-holder to demand arrest and detention of the appellant. 4. The relevant provisions dealing with arrest and detention of the judgment-debtor in execution of decree is contained in Section 51 of the Civil Procedure Code. The proviso to that section reads: