MATHURA PRASAD SHARMA Vs. PARMESHTHI DAS

JUDGEMENT

(1.) A decree for arrears of rent amounting to about Rs. 5, 000/- and odd including mesne profits and interest was sought to be executed against the judgment-debtor-appellant by his arrest and detention in Civil prison, under Section 51 (b), C. P. Code. The decree-holder had obtained a decree on 16-11-1968 for eviction of the defendant-judgment-debtor from a house and for recovery of arrears and mesne profits. On 27-11-1968, only ten days after, the decree holder put the decree in execution and ap plied for the arrest of the judgment-debtor in so far as the recovery of the arrears and mesne profits were concerned on the allega tion that the judgment-debtor had means to pay the amount of the decree but refused 01 neglected to pay the same. Since the judg ment-debtor had already vacated the house, the decree was partly satisfied. On a notice having been sent to judgment-debtor he filed an objection to the effect that he had no means in his possession to pay the decretal amount. The learned Munsif on the evi dence on record found that the judgment-debtor was working as a Textile agent earn ing an income of about Rs. 15, 000/- a year but he had not saved any amount, was highly indebted and had no sufficient means on the date of the decree to pay off the decretal amount. The application of the decree-holder for execution of the decree by arrest was dismissed. On appeal by the de cree-holder the learned Civil Judge held that the judgment-debtor having earned Rupees 15, 000/- a year must be deemed to have made considerable saving as there was no evidence adduced on his behalf about his expenses. The appeal was allowed and the judgment-debtor was sent to civil prison.

(2.) IT has been urged on behalf of the judgment-debtor appellant that the find ing recorded by the learned Judge of the lower appellate court to the effect that the judgment-debtor made considerable saving and thus was in possession of cash sufficient to meet the decreed demand, is conjectural and has been arrived at by throwing the onus on the judg ment-debtor hence is vitiated. On the other hand, it was urged for the decree holder respondent that the finding cannot be said to be conjectural inasmuch as on the facts established a presumption of fact naturally followed that the judgment-debtor had con siderable cash with him and a finding based on such a natural presumption would be a good finding of fact binding in second ap peal.

(3.) THERE is, in my view, one fur ther defect in the verdict of the lower appel late court. As is the practice in England, on which the scheme of Civil Procedure Code is based, that before sending a judgment- debtor to a prison an opportunity should be offered to him to pay up the decree by suit able installments. The Civil Procedure Coda empowers an executing court to fix install ments. If the learned Judge thought that the judgment-debtor had accumulated cash which he was concealing, he may have taken recourse to the provisions of sub-rule (3) of Rule 40 of Order XXI of the C. P. Code instead of sending him to jail direct. Further the learned Judge of the lower appel late court ought to have taken due notice of the hurry and speed taken recourse to by the decree-holder, he having applied for exe cution of the decree for realisation of the money by arrest of the judgment-debtor Within ten days of the passing of the decree. Even if under the circumstances, the judg ment-debtor intended to pay off the decree, the decree-holder did not give him sufficient opportunity and rushed to the court for orders of a most drastic nature and the court readily accepted the prayer. A court must always be hesitant to send a judgment-debtor to prison unless it were found that the judgment-debtor had been always dis honest, contumacious and deliberate in his conduct in avoiding the decree passed against him. In the instant case, I do not find any such evidence on the record.