@JUDGMENTTAG-ORDER
ORDER
1. This Civil Revision Petition is directed against the order dated 12-1-1997 in E.P.No. 18/95 in O.S.No. 142/86 on the file of Principal District Munsif, Narsapur, dismissing the E.P., on the ground that the decree holder failed to prove that the judgment-debtor having means, refused or neglected to pay the decretal amount and hence the E.P. for arrest of judgment debtor fails.
2. The decree holder obtained a decree for recp1 overy of Rs.7,500/- in O.S.No.142/86 on the file of Principal District Munsif, Narsapur, and filed the E.P. under Order XXI Rule 37 C.P.C. for realisation of the decretal amount by the arrest and detention of judgment debtor in civil prison. It is stated that the judgment-debtor is having a daba-house in the 4th Ward of Narsapur Municipality, that he is a retired Hindi Pandit and is having cash on hand besides getting pension and hence he is having sufficient means to discharge the decretal debut and he is avoiding to pay the same. The judgment debtor filed a counter resisting the E.P. He stated that the amount claimed in the E.P. is not correct, that he does not possess any moveable or immovable properties and he has no means to discharge the E.P. amount. It is further stated that he is aged about sixty two years and he is suffering from Fits and cannot walk without the support of a stick or umbrella.
3. During the enquiry, the decree holder examined himself as PW1 and judgment-debtor as RW1. Exs.Bl to B6 are marked on behalf of the judgment-debtor.
4. The learned Munsif scrutinised the evipdence of PW1 on one hand and RW1 and Exs.B1 to B6 on the other hand held that the pension of the judgment-debtor is not liable for attachment, that Exs.Bl and B6 show that he is not hale and healthy and that Exs.B2 to B5 establish that the house shown in the E.P. schedule belongs to the wife of the judgment debtor. The learned Munsif has accordingly held that the decree holder has failed to prove that the judgment debtor having sufficient means refused or neglected to pay the decretal amount and hence he is not liable to be arrested. The decree holder has challenged the order in this Revision Petition.
5. Sri Y. Chandrasekhar, learned Counsel for the revision petitioner has traced the history of the case stating that the judgment-debtor herein was a tenant in the house of the decree-holder and he never paid any rent and hence the decree-holder was driven to the Court for realisation of the arrears of the rent and the judgment debtor herein raised several contentions including denial of title and dragged his feet for a long span of six years. As against the claim of Rs.9,618.50 ps. (being rent of Rs.7,500/- and interest of Rs.2,118.50 ps.) the suit was decreed for a monthly rent of Rs.250/- and subsequent interest at 6% perannum from the date of the suit. The matter was carried in appeal and the appellate Court allowed the appeal in part and reduced the rent to Rs.60/- p.m. It is then stated that the judgment debtor who is a Hindi Teacher in Taylor''s High School retired from service on 31-12-1992 and he has fraudulently transferred all his assets either to his wife or to daughters and now he is pretending that he is only a pensioner and he has n means to satisfy the decree. Sri Chandrasekhar contended that the judgment debtor was in service on the date of the decree and hence he has had means to satisfy a substantial part of the decretal amount as envisaged by proviso (b) to Section 51 C.P.C. He also argued that a warrant of arrest should,, have been issued straightaway to the judgment-debtor and the enquiry contemplated u/s 51 C.P.C. ought to have been held after the judgment debtor was arrested and produced before the Court and before passing the detention order as sought for and hence the learned Munsif failed to exercise the jurisdiction vested in him and did not issue an arrest warrant and the entire enquiry can be said to have been vitiated. He relied on
6. Undoubtedly, this case can be quoted as a classic examples of laws'' delays. It is strange that a suit of this nature was pending for six years and ultimately when the fruits of the decree arc sought to be recovered the decree holder is turned down with an empty bowl. Be that as it may.
7. A look at Proviso (b) to Section 51 C.P.C. is necessary to understand the contentions of Sri Chandrasekhar.
"(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''''
8. Sri Chandrasekhar stated that the decree was passed on 15-6-1992, on which date the judgment-debtor was in service. The salary particulars are, however, not available. In any case, a portion of the salary was available for attachment as on the date of the decree. In my considered view, the words ''has had on the date of the decree'' denote the capacity of the judgment debtor as on the date of the decree. That is why, the above provision contemplates that ''die judgment-debtor has the means'' which denote the means in presenti and also that the judgment-debtor ''lias had since the date of the decree the means'' which denote that he had means in the past and since the date of the decree. A perusal of the impugned order does not show that the learned Munsif had applied his mind to this aspect of the matter and he failed to enquire into the means or earning capacity of the judgment-debtor as on the date of the decree and whether he had sufficient means since the date of the decree till he retired to pay the decretal amount or substantial portion thereof. Thus, there is error of exercise of jurisdiction vested in the learned Munsif.
9. In this context, it is seen from the evidence on record that the judgment debtor has a telephone facility. His case is that the telephone was installed by his daughters and they are footing the telephone bill. I think that this is a fallacious contention. Neither a daughter is examined nor a telephone bill showing the payment by one of the daughters is filed. It may be borne in mind that in the recent past the Government of India formulated four requirements to render an individual liable to file an income tax return and a telephone connection is one of them. It is a well-known fact that a telephone is a requirement of personshaving sufficient means. That apart, the lower Court does not appear to have paid any serious attention to the assertions of decree holder that the house shown in the E.P. Schedule belpngs to judgment-debtor. It is no doubt true that the documents Exs.B2 to B5 contain the name of his wife but there is no material to establish her source of income. It is merely stated by the judgment debtor that she purchased the plot from out of her sthridhana or constructed the house with her sthridhana but that is not enough. There must be evidence to establish her source of income if it is independent income or if she has any property of her own or if her parents had gifted any property to her towards Pasupit Kumlaima. On die contrary, the period of construction indicated by the above documents shows that it was during the fag end of the service or immediately after retirement of the judgment-debtor. Hence, it is open to the Court to infer that the judgment-debtor''s terminal benefits or anticipated terminal benefits have been invested to construct the above house. I am fortified by
10. The other contention of Sri Chandrasekhar is that there is a distinction between issue of warrant of arrest and order of detention in civil prison and the enquiry envisaged in Section 51 C.P.C. has to take place after issue of arrest warrant and before passing die order of detention to the civil prison. He is armed with two judgments of Madras High Court cited (supra). In die judgment cited (supra) it is held,
"Powers of Court to enforce execution -The requirement prescribed under the proviso to Section 51 is not applicable before an order of arrest is made, but is applicable only when the person is brought before the Court, or arrested and produced before the Court and the Court is ordering the committal of the judgment-debtor to civil prison."
A Division Bench of Madras High Court has also expressed the same view in the judgment cited (supra), and it is held,
"The order of arrest of the judgment debtor passed by the executing Court without giving a finding regarding the means of the judgment debtor to pass the decree amount is not one without jurisdiction. The executing Court is required to go into the means of the judgment debtor only after he is arrested and brought to Court and before deciding whether he has to be committed to prison or not in execution of the decree."
11. In view of the above authorities, I have to hold that the enquiry held by the learned Munsif before issuing the warrant of arrest is uncalled for and the same is vitiated and is liable to be set aside.
12. The revision petition is, therefore, merited and it is accordingly allowed and the impugned order is set aside. The matter is remitted to the lower Court with a direction to issue warrant of arrest against the judgment debtor and to proceed with the enquiry envisaged by Section 51 C.P.C. afresh. He is also directed to enquire into the earning capacity or salary of the judgment-debtor as on the date of the decree and to decide as to how much is exempt from attachment u/s 60 C.P.C. and whether the balance, if any, can be said to be sufficient means to satisfy the decree or substantial portion thereof. Having regard to the enormous delay in disposal of the suit and in view of the peculiar circumstances, in which the matter is being remitted, the learned Munsif is directed to take urgent steps with all possible speed at his command. Costs will abide by the result of the E.P.
