B MATHA GOWDER Vs. KADA GOWDER
HIGH COURT OF MADRAS
B. MATHA GOWDER
M.S. KADA GOWDER
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(1.) This appeal arises out of an application for execution of the decree in O. S. No. 16 of 1947 on the file of the Subordinate Judge of Ootacamund by arrest of the judgment-debtor. The decree was passed in August 1947 and it is stated that the decree-holder has not been able to realise any appreciable sum towards the decree amount. The learned Subordinate Judge finds that the judgment-debtor has the means to pay the decree amount and is therefore liable to be arrested.
(2.) The question that has been argued relates to the correct interpretation to be put upon clause (b) of the proviso to Section 51, Civil P. C. added by means of Section 2. Civil P. O. (Amendment) Act of 1936 (21 of 1936). As it originally stood before the amendment, Section 51 of the Code which was introduced for the first time in 1908 contained only the following provisions:
"Subject to such conditions and limitations as may be prescribed the Court may, on the application of the decree-holder, order execution of the decree- (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property; (c) by arrest and detention in prison; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require." 2a. It is conceded that clause (a) of the proviso to Section 51 cannot in terms apply for it is not shown that the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court with the object or effect of obstructing or delaying the execution of the decree. Nor is it the decree-holder's case that the judgment-debtor 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. But what is urged on behalf of the decree-holder is that the judgment-debtor has the means to pay the amount of the decree or a substantial part thereof and refuses or neglects to pay the same. Clause (b) of the proviso to Section 51 reads as follows:
"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." Mr. Sankara Aiyar for the appellant judgment-debtor contends that in order to attract the operation of this clause in the proviso the judgment-debtor must have acquired the means after the passing of the decree to pay the decree amount or a substantial portion thereof and must have refused or neglected to pay the same and in the absence of any evidence in the case that subsequent to the passing of the decree the judgment-debtor has acquired any property, he is not liable to be arrested. He analyses Clause (b) of the proviso into its various, component parts in the following manner: (1) The judgment-debtor has, since the date of the decree, the means to pay the amount of the decree or some substantial portion thereof and refuses or neglects to pay the same; (2) the judgment-debtor has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and has refused or neglected to pay the same.
(3.) According to the first part even at the time the decree is being executed, the judgment-debtor must have in his possession the means acquired by him after the passing of the decree and must neglect or refuse to pay the decree amount. There is no evidence according to the learned counsel of such a state of things. Taking the second part learned counsel contends that the judgment-debtor must have had since the date of the decree the means to pay the amount; in which case, after the passing of the decree the judgment-debtor must have acquired some property which was not in his possession at the time of the execution and therefore he has had the means to pay.;
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