SHIV RAM SINGH Vs. PURSHUTTOM DAS

JUDGEMENT

(1.) THIS Second Appeal has been filed by the judgment debtor against the order dated 31-3-1970 passed by the District Judge, Kanpur, affirming the order of the Trial Court, by which the judgment-debtor is liable to be arrested and detained in Civil Prison. The facts of the case in brief are that the decree holder sought to execute his decree by arrest and detention of the judgment debtor in Civil Prison. An objection was filed by the judgment debtor on similar grounds. Ultimately the judgment debtor gave an undertaking before the trial Court that he will pay the decretal amount in installments of Rs. 15/- per month. It appears that the judgment debtor did not pay any installment. The decree holder again applied for execution of the decree by arrest and detention in Civil Prison. Again, an objection was preferred by the judgment debtor similar to previous objection. The case of the judgment debtor was that merely because he could not pay the installments, no ground for his arrest has been made out. The trial Court heard both the parties and rejected the objection of the judgment debtor and held that the judgment debtor is liable to be arrested and sent to the Civil Prison. The order passed by the trial Court was challenged, by the judgment debtor, which was summarily dismissed by the District Judge, Kanpur. It has been contended by the learned counsel for the appellant that no case of arrest and detention has been made out in this case. He referred to Section 51 (c) of the Civil Procedure Code, which is as follows; 51. . . . . . (c) by arrest and detention in prison, ***** (Provided that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment debtor an opportunity of showing cause why he should not be committed to prison, the Court for reasons recorded in writing, is satisfied: (b) that the judgment debtor has, or has since the date of the decree, the means to pay the amount of the decree of some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or. According to Section 51 (c) of the Civil Procedure Code, there is provision for arrest and detention in prison. But according to proviso (b), it depends on the fact 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. According to the Learned Counsel for the appellant, the Courts below have recorded a find ing that the judgment debtor has had the means to pay the decretal amount since the date of decree, but has refused to pay the same. No independent find ing has been recorded by the Courts below about the fact that the judgment debtor has had the means to pay the decretal amount since the date of decree. The order of arrest and detention has been passed only on account of the fact that the judgment debtor had agreed, at one stage, to pay the decretal amount in instalments, but has refused to do so. In support of his contention, the learned counsel for the appellant placed reliance upon Kesava Pillai v. Ouseph Joseph A. I. R. 1977 Kerala 27, wherein, it has been held that: "sub-clause (b) of the proviso to Section 51 Civil Procedure Code in so far as it deals with the question of means has been interpreted in Harpal Singh v, Hira Lal A. I. R. 1955 All. 402 as follows; "mere non-payment to the decree-holder when the judgment-debtor came into possession of means subsequent to the date of decree will not always be sufficient for coming to the conclusion that the judgment debtor refused or neglected to pay the decree-holder. Refusal implies that a request was made to the judgment-debtor at the time when he had the means to pay and yet the judgment-debtor did not pay and declined to make any payment. There is nothing on the record to suggest that any such request was made when the judgment debtor had that money with him and that the judgment debtor refused to pay the decree-holder. Negligence to pay also connotes that when the judgment-debtor could have paid he just omitted to pay due to his negligence or carelessness. If the judgment-debtor had other claims to satisfy or other more urgent necessities to meet and spend the money on such purposes, it cannot be said that he neglected to pay the decree-holder. In the absence of evi dence which could have a bearing on these considerations the Court below could not have felt satisfied that the judgment debtor had refused or neg lected to pay the decree holder's amount within the meaning of clause (b) to the proviso to Section 51 Civil Procedure Code. " 10. That a debtor offers to pay the decree debt in instalments need not necessarily mean in every case that he has at the time of the offer the means to pay the decree debt in full or a substantial part thereof. It is quite possible that he makes the offer to maintain his respectability before the public and under the hope and expectation that money would be forth coming in future for payment of the instalments. Whether he has means to pay has to be decided irrespective of the offer to pay instalments. " In view of the above decision, it is quite clear that in a case where an offer is made by the judgment debtor to pay the decretal amount in instalments and in case he refused to pay the same, on this fact it cannot be held that the judgment debtor had means to pay and has refused to pay. The offer can be made by him to maintain his respectability before the public and under the hope and expectation that money would be forthcoming in future. There are many other reasons for making proposal for payment of the decretal amount, but it does not necessarily mean that the judgment debtor has had the means to pay the decretal amount. The next question arises whether the judgment debtor has to show that he has not sufficient means to pay the decretal amount or the decree-holder has to satisfy the Court that the judgment debtor has sufficient means to pay the decretal amount, but is not paying. In V. K. S. Sivam v. Thirupethiswanti A. I. R. 1972 Mad. 9 and K. P. Mohammed Ibrahim v. The State Bank of Travancore, Trivandrum. A. I. R. 1964 Mad. 233 it has been held that the burden is on the decree holder to satisfy the Court that the judgment-debtor has sufficient means to pay the requisite amount, but he has refused to do so. In view of the aforesaid facts, it is clear that in a case where decree-debtor has not been paid by the judgment-debtor, it is necessary for the Court while passing orders for the arrest and detention of the judgment debtor to record a clear finding that the judgment debtor had the means to pay the decretal amount but he refused or neglected to do so, irrespective of the fact that he had made any undertaking before the Court that he will pay the decretal amount. No independent finding to that effect has been recorded in the present case. There fore, the orders of the Courts below cannot be sustained in law and are liable to be set aside. In the result, I allow this appeal, set aside the orders of the courts below and direct the trial Court to decide the objection of the judgment-debtor accord ing to law. However, the parties will bear their own costs. .