DASHRATH PIRJI DATE Vs. MAHADEO N KANE

JUDGEMENT

(1.) As respondent No. 1-original defendant failed to pay the decretal dues of the petitioner-plaintiff under the decrees passed in his favour in Summary Suit No. 2249/3317 of 1975 and Summary Suit No. 2250/3318 of 1975, the plaintiff took out two notices for detaining the defendant in civil prison. As both these notices related to the same parties with the same facts and law involved, both the notices were disposed of by the learned trial Judge by a common judgment. By the said judgment, the learned trial Judge discharged both the notices. It is against this order that the plaintiff has filed the present revision application.

(2.) In support of the petition, I have heard Mr. S.N. Satpute, learned Counsel for the petitioner-plaintiff instructed by Mr. P.M. Khankar. Respondent No. 1 - defendant though served has not chosen to appear either personally or through any Advocate of this Court.

(3.) The learned trial Judge has discharged the notices on the ground that though the defendant did have means to pay the decretal amount, the said means cannot in law be taken into consideration as his means because the said means consisted of his wages which were liable to be excluded from consideration while considering the defendants means to pay. Now, the relief asked for by the plaintiff was in terms of section 51(c) of the Code of Civil Procedure viz., arrest and detention in prison of the defendant-judgment debtor. Proviso to section 51 states that where the decree is for payment of money, indeed in this case it is, 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 that (to the extent relevant here) 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. Explanation to this proviso states that in the calculation of the means of the judgment-debtor, there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree. To find out what property is exempt from attachment of a decree, reference to section 60 of the Code of Civil Procedure is necessary. Under the said section and to the extent relevant here, the wages of labourers, whether payable in money or in kind, shall not be liable to attachment. It is in the light of these provisions that the learned trial Judge has discharged the notices even though the material and record more than satisfactorily establish that the defendant did have the means to pay but the said means consisted of his wages even though the said wages were of quite a high order as indicated by the fact that the defendant was also paying income-tax.