Kuppuswamy vs Dr. P.G. Menon

K.S. Paripoornan, J.—The judgment-debtor in O.S. No. 700 of 1986, Munsiff''s Court, Palakkad is the revision-Petitioner. In this revision, he objects to the order passed by the Court below in E.P. No. 381 of 1990 dated 30th September 1991. By the said order, the learned Munsiff held that the judgment-debtor has sufficient means to pay off the debt and ordered to issue an arrest warrant against him. The judgment-debtor assails the said order.

I heard counsel. The Respondent/decree holder obtained a decree for Rs. 6,200 against the revision-Petitioner. He filed E.P. No. 381 of 1990 and resorted to the coercive process of personal execution. The judgment-debtor contended that he has no means to pay the decree debt. The decree-holder was examined as P.W. 1. He stated that the judgment-debtor owns houses and has assets to pay the decree debt. He also stated that the children have good jobs. In cross-examination of P.W. 1, it was brought out that the houses belong to the deceased wife of the judgment-debtor. The revision-Petitioner contended that the wife had executed a Will. But, no such Will was produced in the Court below. It is fairly clear that on the death of the wife of the judgment-debtor, he will get a share in the property. The Court below found so. The judgment-debtor did not enter the box; nor did he adduce any evidence to challenge the above facts brought out in the examination of the decree-holder (P.W. 1). In the absence of such evidence, the Court below held that the judgment-debtor has sufficient means to pay off the debt and ordered the issue of arrest warrant against him.

Section 51(c) read with Clause (b) of the proviso of the CPC is relevant to appreciate the plea of the revision-Petitioner, that the Court below was in error in holding that the judgment-debtor has 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. The said section is as follows:

PROCEDURE IN EXECUTION

Powers of Court to enforce execution.

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 for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that section;

* * * * Provided 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,-

* * * * (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

* * * *

Mr. Chitambaresh, counsel for the revision-petition, submitted that the burden of proof is on the decree-holder to prove that the judgment-debtor has the means to pay the amount of the decree or substantial part thereof and yet he refuses or neglects or has refused or neglected to pay the same. The decree-holder has failed to furnish details of the property owned by the judgment-debtor and there is no evidence to show that the judgment-debtor has in his possession any sum of money or assets "in present" to wipe off the debt. Reliance was placed on the decision in Kesava Pillai Karunakaran Pillai Vs. Ouseph Joseph, to contend that the judgment-debtor should have liquid resources or assets. Reliance was also placed on the decision reported in Mathew v. Bank of Cochin 1982 KLT 274 at 279 to contend that the existence of means in present and a finding as to the availability of means is mandatory. It was submitted that there should be dishonest conduct, bad faith, concealment and the like on the part of the judgment-debtor.

In this case, on the basis of the evidence let in by the decree-holder, the Court below has found that on the death of the wife of the judgment-debtor, he got a share in the property. It is clear that the judgment-debtor obtained some property on the death of his wife and no contra evidence was adduced by the judgment-debtor to challenge the above plea of the decree-holder. It has also been brought out that two houses have been let out which fetch good rent. In the light of the above facts, the question is this: "was the Court below justified in holding that the judgment-debtor has sufficient means to pay off the debt and he has not cleared his liability and the issue of arrest warrant is justified?"

It is true that the burden of proving the circumstances specified in Section 51 CPC lies on the decree-holder. Strict proof of every detail is not necessary. The decree-holder should give some indication or details of the properties or Assets of the judgment-debtor. It is competent to the executing Court, on the materials placed before it, to draw an inference as regards the statutory finding required by Section 51 of the Code of Civil Procedure. The question whether there are circumstances justifying the order for arrest is one of fact.-See R.M. Jassawala Vs. Amulya Chandra Dutta, . I am of the view that the requirement of Section 51 CPC will be satisfied if the judgment-debtor has means to pay the debt either from liquid resources or assets belonging to him which can reasonably furnish such resources. It is open to the execution Court on the materials placed before it, to draw an inference as regards the statutory findings required by the section. If there is prima facie material on record about the means of the judgment-debtor, it is for the judgment-debtor to rebut it. He is in a better position to know of his assets. See- John Chacko v. Thomas Varghese ILR 1970 Ker 109. The crucial words in Clause (b) of the proviso to Section 51 CPC "the means to pay the amount of the decree or substantial part thereof" only mean that the judgment-debtor should have realisable assets from which the necessary money can be raised or realised to pay up the decree amount. See-Xavier v. Canara Bank Ltd. 1969 KLT 927 and Mohamed Ibrahim v. State Bank of Travancore AIR 1964 Mad 233. Where it is proved or admitted or otherwise evident that the judgment-debtor owns or posses a house or has got interest therein, the normal presumption is that he is able to pay the debt either by sale or mortgage or creating other encumbrance of the house. In such circumstances, it is open to the judgment-debtor to rebut the presumption and prove either that he does not own or possess the house or that no alienation or encumbrance is possible of that property.

In the absence of any such rebutting evidence, the findings of the Court below that the judgment-debtor has got sufficient means to pay the decree debt and he failed to pay the same purposely, are correct and issue of arrest warrant is called for. It is justified in law. The order of the Court below dated 30th September 1991 is not beset with any jurisdiction illegality or irregularity to merit interference u/s 115 Code of Civil Procedure.

The revision is without merit. It is dismissed.