The burden of proof regarding the judgment-debtor's means to pay the debt lies with the decree-holder. The court may draw inferences based on the evidence presented, and the judgment-debtor is required to provide evidence to challenge the decree-holder's claims.

The Judgment-debtor in O.S. No. 700 of 1986, Munsiffs Court, and 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 30-9-1991. 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.

2. 1 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 PW1. He stated that the judgment-debtor owns houses and has assets to pay the decree debt. He also staled that the children have good jobs. In cross-examination of PW1, 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 properly. 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 (PW1). 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.

3. S.51(c) read with clause (b) of the proviso of the Code of the Civil Procedure 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 51. 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 exeeding the period specified in S.58, where arrest and detention is permissible under that section;

Provided that, where the decree is for the payment of money, execution by detention iii 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

4. Mr. Chitambaresh, counsel for the revision-petitioner 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 neglect 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 KesavaPillaiv. Ouseph Joseph (AIR 1977 Kerala 27), to contend that the judgment-debtor should have liquid resources a or assets. Reliance was also placed on the decision reported in Mathew v. Bank of Coch (1982 KLT 274 at p. 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 o