JOHN CHACKO Vs. THOMAS VARGHESE

JUDGEMENT

(1.) THE judgment -debtor has come up in revision when an order for arrest and detention in the civil prison,made by the executing Court,was confirmed in appeal,Counsel for the respondent rightly took a preliminary objection that a revison was not maintainable since the matter in dispute directly fell within the scope of section 47 C.P.C.Thereupon,an application,C.M.P.No.8333 of 1969,was moved by the revision petitioner for conversion of the C.R.P.into a second appeal.In the light of the allega­tion made in the affidavit filed by counsel for the petitioner I allow the prayer and direct the C.R.P.to be converted into a second appeal.

(2.) THE 2nd defendant is one of the two judgment -debtors and the decree amount is around Rs.2,000.The decree holder sought to execute the decree against both the judgment debtors but we are concerned in this appeal only with the plea of the 2nd defendant judgment -debtor that he has not had the means to pay the decree amount within the meaning of section 51 C.P.C.The execution petition was posted,after the counter -affidavit of the judg­ment -debtor was filed,to 14th February 1968 for the evidence of the decree holder who has to make out prima facie 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.On that date,P.W.1,the decree holder,was examined and for the evidence of the judgment -debtor the case was posted to 24th February 1968.On that date an application was filed by the advocate for the judgment -debtor pray­ing for adjournment on the ground that his client had gone away to see a close relation of his in a hospital and could not therefore attend the Court to give evidence.This motion was rejected and in the absence of any evidence adduced by the judgment -debtor,the decree holder 's evidence was accepted and the arrest and detention in the civil prison ordered.Thereupon,the judgment -debtor filed an appeal which,as I have already stated,was dismissed.Before me many contentions have been put forward,some highly technical and others less so.

(3.) THE first contention which merits little attention is that there is no prayer in the execu­tion petition for detention in the civil prison since,according to counsel for the appellant,all that has been asked for is the arrest of the peti­tioner and if found necessary,later to send him to prison.I see no difficulty in construing this application to be in conformity with section 51 C.P.C.and the ruling cited in support of the argument,viz .,1965 K.L.J.124 has very little to do with the point raised except that both relate to section 51 and Order 21,Rule 37 C.P.C.I need not spend more time on that point.