PATEL GORDHAN KANJIBHAI Vs. ATLAS ENGINEERING CO WORKS

JUDGEMENT

(1.) This is an appeal under sec. 47 of the Civil Procedure Code by the appellant who was original judgment debtor in Regular Civil Suit No. 27 of 1964 on the file of the Civil Judge (J.D) Rajkot against the judgment and order of the District Judge Jamnagar in Regular Civil Appeal No. 100 of 1971 confirming the order of the Civil Judge (J.D.) Kalawad in Regular Execution Application No. 34 of 1970 directing that the appellant herein be committed to the civil prison for not satisfying the decree of which the execution was sought for by the respondents firm who are the judgment creditors.

(2.) The only question that arises in this appeal is whether the order of the learned District Judge confirming the order of the trial court directing that the appellant be committed to the civil prison for non-satisfaction of the decree passed in Regular Civil Suit No. 27 of 1964 is a legal and a proper order. The question arises in the following circumstances

(3.) The judgment creditors who are respondents firm before me obtained a decree against the appellant in Regular Civil Suit No. 27 of 1964 in the (Court of Civil Judge (J.D.)) Rajkot for a sum of Rs. 2232.76 paise on February 1 1965 It appears that on 27th January 1966 the judgment creditors applied for execution of the said decree and an amount of Rs. 400.00 was realised from the judgment debtor. It appears that on 27 January 1966 the application for execution of the decree was there fore withdrawn It further appears that as the judgment creditors could no realise the balance of the decretal amount they applied for execution of the decree by their application No. 34 of 1970 somewhere in July 1970 for recovery of Rs. 1959.00. Both the aforesaid execution applications made in the Court of Civil Judge (J.D.) Kalawad where the landed property of the judgment debtor is situated. In the execution No. 34 of 1970 the judgment-creditors prayed under sec. 54 of the Civil Procedure Code for execution of the decree by attachment and sale of the agricultural land belonging to the judgment debtor and also by arrest and detention of the judgment debtor in civil prison under sec. 55 of the said Code. The learned Civil Judge issued a notice under Order 21 Rule 37 calling upon the judgment debtor to appear before the Court and to show cause why he should not be committed to the civil prison. The judgment debtor in pursuance to the said notice appeared before the court and filed his written statement contending inter alia that nothing remained due under the aforesaid decree as an amount of Rs. 1900.00 was paid for which a receipt was passed in his favour by the judgment creditors and the judgment creditors agreed to forgo the remaining amount of Rs. 59/ . On these contentions the learned Civil Judge raised only one issue viz. whether the opponent proves that he has paid Rs. 1900.00 to the applicant on 20-1-69 ?. As a result thereof the onus to prove this issue was on the judgment debtor who was required to go into box first and to prove his case. The judgment creditor went in box thereafter and gave evidence in respect of the alleged payment of Rs. 1900.00 and the agreement to forgo the balance amount of Rs. 59.00 as claimed by the judgment debtor. On consideration of this evidence the learned Civil Judge found that the judgment debtor had failed to prove that he had paid Ks. 1900/- to the judgment creditors or that the judgment creditors agreed to forgo the remaining amount Or Rs. 59.00 as claimed by the judgment debtor. On these findings the learned Civil Judge ordered that the judgment debtor be kept in civil prison for a period of six months because he was satisfied that the judgment debtor had sufficient means to pay the decretal amount. The judgment debtors therefore went in appeal before the District Court of Jamnagar. The learned District Judge after consideration of the rival contentions of the parties confirmed the order of the trial court. It was specifically urged before the learned District Judge that the procedure prescribed under Order 21 Rule 40 was not complied with and the trial court as well as the District Court approached the problem only from the angle of the alleged payment and did not satisfy as to whether the grounds required under clause (b) of the proviso to sec. 51 of the Civil Procedure Code were satisfied or not. The learned District Judge has also held that the judgment debtor has failed to prove the alleged payment of Rs 1900/_ or the fact of the agreement between the parties as to forgo of the remaining amount of Rs 59/-. The learned District Judge therefore confirmed the order of the trial court. It is this order of the learned District Judge which is the subject matter of this appeal before this court.