ANUMA GOUNDER Vs. C PONNUSAMI

JUDGEMENT

(1.) THE petitioner is one Anuma Gounder, against whom the respondent had obtained a decree for money in the sum of Rs. 1,618. THE decree-holder sought to levy execution against the judgment-debtor by applying for his arrest and detention in civil prison. THE judgment-debtor resisted the execution proceedings on the score that he was a small farmer within the meaning of Act XXXI of 1976, entitled sealing down the delet.

(2.) THE learned District Munsif, found on the evidence that the judgment-debtor could not be regarded as a small farmer. Having disposed of the judgment-debtor-s objection to execution based on Act XXXI of 1976. THE learned District Munsif then proceeded to give a disposal to the execution petition in the following manner: -THE respondent does not plead that he has no means to pay the decree amount .......... THE petition is posted to 25th July, 1978, for the payment of the entire amount by the respondent. If the respondent fails to pay the decree amount by them, arrest will be ordered-. This order of the learned District Munsif has been brought before this Court in revision by the judgment-debtor.

(3.) I agree with this contention. The learned District Munsif is, no doubt, correct in saying that the judgment-debtor does not plead that he has no means to pay the decree amount. Tut this is purely a negative way of characterising the pleadings of the judgment-debtor. For, nowhere in his counter-affidavit does the judgment-debtor plead that he has means to pay. There is no admission, in this sense. In any case, in a matter like this, where a debtor is sought to be arrested and put in civil prison for non-payment of a decree debt, the execution Court cannot rely for the support of its order entirely on the state of the pleadings of the judgment-debtor. A reference to section 51 of the Civil Procedure Code, would show that it is the bounden duty of the execution Court to satisfy itself that the judgment-debtor has, or has had since the date or the decree, the means to pay the amount of decree or some substantial part thereof, but all the same refuses or neglects or has refused or neglected to pay the same. Section 51 further insists that the Court-s satisfaction must be entered for good reasons which are to be recorded in writing in the order. The provisions of section 51 do not depend for their implementation on the attitude which the judgmentdebtor might take when notice goes to him of the execution petition. Whether or not the judgment-debtor resists the execution petition and whether or not the judgment-debtor denies that he has means, the Court cannot shirk its responsibility under the Code of instituting an enquiry to find out whether the judgment-debtor has the requisite means to pay and yet wilfully refuses or neglects to pay the amount. Order 21, rule 10 (1) of the Civil Procedure Code, lays down that -Where a judgment-debtor appears before the Court in obediance to a notice issued under rule 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 civil prison. This opportunity is over and above, the opportunity afforded by the service of notice of the execution petition-.