JUGAL KISHORE Vs. PAHLAD RAI

JUDGEMENT

(1.) On the judgment of the District Judge it is clear that the question of onus of proof was not a mere academic question, as the Judge starts by stating that the onus was on the decree-holders, and towards the end of his judgment states that the decree-holders have failed to establish that the judgment-debtor had sufficient means to pay the debt within the meaning of Sub-clause. (b) of the Proviso to Section 51, Civil P.C.

(2.) Like so many of these statutory provisions, the matter is not free of difficulty, but it does seem to me on the whole to be clear from the wording of Sub-clause (b) itself that the Legislature intended the decree-holder to prove that the judgment-debtor had means. It is true that the first part of the Section calls upon the judgment-debtor to show cause why he should not be committed to prison, but the Sub-clause which I have to construe provides that "the judgment-debtor has or has not had, since the date of the decree, means to pay the amount of the decree"; the Judge, in other words, has to be satisfied of that fact.

(3.) The clause is in the affirmative but the argument addressed to me suggests that the judgment-debtor should be called upon to prove the negative. I think that is an impossible construction. I would hold therefore that the Judge in the Court below correctly placed the onus upon the decree-holders.