Asthana, J. - (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. It is not the case of the decree-holder that the judgment-debtor was posses sed of any assets other than money. The only evidence which was adduced by the decree-holder was that the judgment-debtor was working as a Textile agent and earning considerable amount of money as commis sion. Both the Courts below recorded a concurrent finding that the judgment-debtor was working as a Textitle Agent which pro duced an income of about Rs. 15, 000/- a year. The two courts below have differed on the question whether the judgment-debtor saved any amount. I think it was for the decree-holder to prove by evidence on record that the judgment-debtor actually saved some money every year and kept it aside, not necessarily in a Bank. The decree-holder would not succeed merely by adducing evi dence to the effect that the judgment-debtor was working as a Textile Agent earn ing Rs. 15, 000/- a year. Under Section 51 (b) C. P. Code the decree-holder has to satis fy the court 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. Learned counsel for the decree-holder respondent re ferred to a decision of the Madras High Court in V. P. Madhavan Nambiar v. Chal dean Syrian Bank Ltd, AIR 1955 Mad 409 in support of his submission that it is sufficient for a decree-holder to establish that the judgment-debtor had the ability or capa city to pay in order to meet the statutory requirements of Section 51 (b) as the Court can legitimately draw an inference of fact that the judgment-debtor has actually been in possession of substantial cash, he being in business and earning commissions as a Tex tile Agent. From paragraph 7 of the re ported judgment it appears that on the facts in that case the learned Judges held that the inference was perfectly justifiable that the judgment-debtor since the institution of the suit dishonestly concealed his assets and further more that he had since the date of the decree means to pay a substantial portion of it from the assets he had concealed from the Court. Here, in the instant case, there is nothing on record to show that the judg ment-debtor concealed any assets. There is no such natural presumption as urged by the learned counsel for the decree-holder-respondent that a person whose annual in come is about Rs. 15, 000/- or for the matter of that, substantially more than that must be making considerable saving. How much one saves from his earned income depends upon his attitude and the conditions of life in which one finds himself. It is bound to differ from man to man. I am unable to agree with the learned counsel and with the learned Judge of the court below that it can safely be inferred that a man earning Rupees 15.000/- a year must have considerable amount as sayings. Sending a man to pri son in execution of a money decree, accord ing to the scheme of our procedural law, I think, is an extraordinary step and the method of execution by way of arrest should be taken resort to by the court when it is satisfied on cogent evidence that the judg ment-debtor has or has had since the date of the decree the means to pay the amount of decree or some substantial part thereof. I can very well visualise sometimes the diffi culty in which the decree-holder will find himself to discharge the onus as it is very difficult to prove the concealment of his as set, particularly cash, by a judgment-debtor. But the law as I conceive, is that the de cree-holder has to discharge this onus. Here in the instant case, beyond establishing that the judgment-debtor was working as a Textile Agent having an income of Rupees 15, 000/- a year the decree-holder has not proved facts or circumstances from which a factual inference could be drawn that the judgment-debtor had saved considerable amount. I would "prefer the appreciation of evidence in this respect by the Learned Munsif who took into consideration certain cir cumstances which were a pointer to the fact that the judgment-debtor had not made any savings or accumulations being in financial difficulties due to loss in business. It is un fortunate that the learned Judge of the lower appellate court drew inference against the Judgment-debtor by completely omitting from consideration the circumstances which emerg ed out from the evidence on the record and which were taken, into consideration by the learned Munsiff.
(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.;