ATTA KARIM Vs. BIBI HABIBA SOGHRA

JUDGEMENT

(1.) This appeal arises out of an execution proceeding. The respondent obtained a decree for Rs. 5000 against the appellant on 11-1-1943, this amount having been claimed by the respondent as her dower. On appeal to this Court the decree was varied and Rs. 10,000 was allowed as dower to this respondent. The decree was put under execution and the judgment-debtor appeared in the execution case on 2-11-1943 and made a prayer to the effect that execution be stayed till the disposal of the appeal which he had preferred to the High Court. He was allowed time till 12-1-1944 and meanwhile an order was received from the High Court according to which the judgment-debtor was allowed to deposit the decretal amount in four equal instalments. This Court permitted the judgment-debtor to pay the decree money in instalments of Rs. 1250 each. There was, however, default by the judgment-debtor and because of the default the decree-holder applied for issue of notice under Order 21, Rule 37, Civil P.C. against him. The judgment-debtor then objected but his objection was overruled and order for issue of warrant of arrest was passed. On 7-9-1944, the judgment-debtor prayed for recalling the order for the issue of warrant of arrest and after this petition had been heard the judgment-debtor was held to be in possession of properties yielding an income of about Rs. 400 per year. There was again an order by the Court permitting the judgment-debtor to pay the decree money in instalments and the judgment-debtor went on making payments till 19-1-1946. In the meantime his appeal before this Court was dismissed. Again for the third time by an order dated 2-7-1946 the judgment-debtor was allowed to pay the decree money in instalments and he made some payments but ultimately the order dated 2-7-1946 was set aside by the High Court. The decree-holder therefore again proceeded with the execution and the judgment-debtor filed an objection contending that he was not liable to be arrested. The judgment-debtor relied on Section 51, Civil P.C., as it stands after the amendment made in 1936. There is a proviso added to this section which says 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 (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree is likely to abscond or leave the local limits of the jurisdiction of the Court, or has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property or committed any other act of bad faith in relation to his property; or (b) 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, or (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. The objection of the judgment-debtor was heard and the learned Subordinate Judge was of the opinion that Sub-clause (b) of the proviso is applicable to this case inasmuch as the judgment-debtor, though he had the means to pay the decree, has neglected to pay it. The learned Subordinate Judge has pointed out that the execution has been pending for the last five years and that though there was a decree for Rs. 10,000 as dower and for Rs. 1400 as costs against this judgment-debtor he has up till now paid a sum of Rs. 3600 only towards the decree. Mr. Sanyal on behalf of the appellant has stressed the fact that the judgment-debtor has made payments from time to time and he argues that this is a circumstance which indicates that he has not refused or neglected to pay the decree money.

(2.) The main question therefore is whether the judgment-debtor has had since the date of the decree the means to pay the amount of the decree or a substantial part thereof. We have got two depositions of this judgment-debtor on the record and from a perusal of these depositions I am satisfied that the judgment-debtor has had the means to pay the decree money. He stated on 1-7-1944 that in December 1937, he had executed a sale-deed in favour of the children of his first wife with regard to the properties yielding an income of Rs. 600 or Rs. 700 per year and that the income from the properties still in his hands was Rs. 400 per year. It is clear from his deposition that besides owning zamindary property yielding an income of Rs. 400 a year he is in possession of certain khudkasht or bakasht lands. His statement is that he has got khudkasht lands in Hundrahi and Bhatta, but unfortunately he has avoided stating the exact area of the bakasht lands. Certainly it is very difficult to believe his statement that he does not remember the exact area of his bakasht lands and is not able to give any idea of those lands. This statement of the judgment-debtor shows that it is not only a few bighas of bakasht lands which are in his possession. If he would have really only possessed a few bighas of bakasht lands it was very easy for him to say that the area of the bakasht land, in his possession is quite negligible. In another deposition which the judgment-debtor gave on 6-7-1948 he stated that he had got about 50 bighas of bhaoli lands. If he has 50 bighas of bhaoli lands that would be equivalent to about 25 bighas of bakasht lands and even this property must be regarded as a valuable property specially in these days when prices of lands are very high. I therefore see no reason to disagree with the learned Subordinate Judge that the judgment-debtor, though he had the means to pay the amount of the decree or a very substantial part thereof, has neglected to pay it. Mr. Sanyal was perfectly right when he said that according to Section 51 of the Code as it stands after the amendment by Act XXI [21] of 1936 the onus of proof is on the decree-holder to establish that the judgment-debtor had sufficient means to pay the decree within the meaning of Sub-clause (b) of the proviso to Section 51. But as was pointed out by a Division Bench of this Court in Kamaldhari Lal v. Kamleshwari Sahay, 1939 P.W.N. 604 : (A.I.R. (26) 1939 Pat. 380) though by the amendment of Section 51 of the Code some restrictions have been placed on the right of the decree-holder to obtain an order of arrest, such an order of arrest can be made when it is found that the judgment-debtor though perfectly capable of paying the decree money has neglected to pay it. Rowland J. who delivered the judgment of the Division Bench expressed his agreement with the decision in Hargobind v. Hakim Singh, 6 Lah. 548 : (A.I.R. (13) 1926 Lah. 110) and in this Lahore case Sir Shadi Lal C.J. had quoted the observation of the Judicial Committee that "the difficulties of a litigant in India begin when he has obtained a decree. The learned Chief Justice further observed that it was a matter of common knowledge that far too many obstacles were placed in the way of a decree-holder who sought to execute his decree against the property of the judgment-debtor, and therefore a decree-holder at times finds it easier to apply for the arrest of his judgment-debtor. The judgment-debtor in this case happens to be a Sub-Registrar but if he has neglected to pay the decree money I should not hesitate to uphold the order that has been passed against him. In my opinion it is an abnormal thing for a man of his position to avoid, delay or obstruct the payment of the dower debt which he was liable to pay to his wife who has now been divorced.

(3.) I see no merit in this appeal and the appeal is dismissed with costs. I agree to the order proposed.