Shri Amitabh Prasad vs Ram Prasad @ Kishunvas and Others

U.C. Sharma, J.—This is an appeal by the decree-holder against the order, dated 29-6-1973 passed by the Additional Subordinate Judge Muzaffarpur, in Execution case No. 47 of 1971. It appears that the decree was obtained by the appellant in Title Suit No. 116/69 of 1953/58. The decree was put in execution in execution case No. 47 of 1971 by putting the Judgment debtor under detention in civil prison. The respondent filed objection to the maintainability of the said execution. It was registered as Miscellaneous case No. 9 of 1972. The decree-holder contended that the judgment-debtor was not paying the decretal dues in spite of his having sufficient properties and therefore the decretal dues should be realised by the arrest and detention of the judgment debtor. The contention of the judgment debtor was that he has absolutely no means to pay the decretal dues and therefore, execution of the decree by arrest and detention was not maintainable. Both the parties adduced evidence in support of their respective contentions. Three witnesses were examined on behalf of the decree holder and the judgment debtor examined four witnesses. The court below, after discussing the evidence adduced by the parties, held that the decree holder had failed to discharge the onus put on them and, therefore, the decree in question was not executable by the issue of warrant of arrest against the judgment-dealer. The court below held that it has not been proved in this case that the judgment debtor had got assets out of which the decretal dues could have been paid.

The learned counsel, appearing in support of the appeal, took me through the evidence adduced in the case and contended that on the evidence on the record, it was clear that the judgment debtor had got certain assets out of which the decretal dues could have been paid and, therefore, the order under appeal was not sustainable. He pointed out that the witnesses examined on behalf of the judgment debtor themselves have admitted that the judgment debtor had got income from the Surkhi Mills and from the milks of buffaloes. The evidence as it is shows that there are two Surkhi Mills standing on the land of the Math. According to the decree holder, the said mills belong to the judgment debtor. But the evidence on behalf of the judgment-debtor is that the said mills belong to one Satrughan Singh, who, however, pays some rent to the Math. As regards the buffaloes the only evidence is that near the Math, buffaloes are tied and there is some income from milk. The evidence on the record shows that the assets, if any, as pointed out above, may be belonging to the Math, but the question is whether they belong to the judgment debtor. The assets of the Math cannot be said to be the personal properties of the judgment-debtor although it has come in evidence that he is in control of the Math and its properties. He may be in control of those properties, but that control is not on his own, but on behalf of the Math. Math is not the judgment debtor (Sic) cannot be realised out of the Math properties.

The decree holder adduced evidence about the assets of the judgment-debtor. The court below has fully discussed and considered the evidence, but he has not been able to show that the judgment debtor has got any property of his own out of which the decretal dues may be realised.

Learned counsel for the appellants referred to Section 51 Clause (c) and Clause (a) (ii) of the provision and submitted that it has been found on evidence that the judgment debtor had concealed his properties. Therefore, he should be arrested and detained in civil prison. The argument could have been quite right if it had been proved on evidence that the judgment debtor had properties which he concealed. In this case, it has been seen that the decree-holder failed to prove that the judgment debtor had any asset from which decretal dues may be realised. That being so, the question of concealment or removal of the property or any part of it, perhaps, does not arise. Onus is on the decree holder to prove facts which may bring the case within the mischief of the provisions of Section 51 of the Code of Civil Procedure. It is true that the said onus is not so strict as to prove that matter to the hilt. But, there must be some evidence to show, at least, prima facie that the judgment debtor had properties, and still he was not paying the decretal dues. If I may say so, in the instant case, the decree holder, has failed to discharge even the initial onus which lay on him. In that view of the matter, I fully agree with the reasonings and conclusion arrived at by the court below. In the result, the appeal fails and is dismissed. In the circumstances, however, of the case, there will be no order as to costs.