K.S. LODHA, J.—This is a judgment debtors revision against the order of the learned Munsif, Ganganagar, dated 26.11.83 directing the detention of the judgment debtors-petitioners in civil prison for two months each for the non-payment of the decretal amount.

2. It appears that a decree for Rs. 9258/- plus interest total amounting to Rs. 10,700/- was passed by the Debt Relief Court, Sriganganagar, against the present petitioners on 19.4.79. The decretal amount was made payable in three instalments, namely, Rs. 4000/- on 9.7.79, Rs. 3000/- by 9.7.80 and the remaining amount by 9.7.81. On default of any of the instalment, the judgement debtors were to pay interest at 4% p. a. The judgment-debtors did not pay any amount towards the decree and, therefore, the decree holders applied for execution of the decree on 16.7.82, by committing the judgment-debtors to civil prison as according to the decree holder, the judgment-debtors having means to pay the decretal amount, were purposely avoiding the payment. On this, a notice under Order 21 Rule 37 C. P. C. was issued to the judgment debtors and they filed their objections. After taking the evidence of the parties, the learned Munsif came to the conclusion that the judgment debtors had about 25 Bighas of land, which was capable of yielding Rs. 25,000/- approximately p. a. and income was shared by three brothers including the two judgment debtors and thus the judgment-debtors had means to pay the decretal amount but had not paid the amount and, therefore, he directed their detention in prison.

3. I have heard the learned counsel for the petitioners. The non-petitioner has not appeared despite service.

4. The only contention raised before me by the learned counsel for the petitioners is that the learned Munsif has not properly applied his mind to the provisions of s. 51, Order 21 Rule 11-A and Order 21 Rule 37 C. P. C. and has improperly directed the detention of the judgment debtors in civil prison. I find some force in this contention. To begin with, I may state that in the execution application, it was merely stated that the judgment debtors had capacity to pay but were avoiding payment. However, no details of their capacity and the instances of neglect or refusal were stated in the application. Then in the evidence, only the decree holder Hardeepsingh had come in the witness box and has stated that the judgment debtors have one Murabba of land which yields an income of Rs. 25,000/- p.a. and they also have Kachcha houses. Thus they are in a sound financial position but he nowhere states that the judgment debtors were neglecting or refusing to pay the decretal amount. The judgment debtors have come in the witness box and have stated that their father was allotted 1 Murabba of land and now after the death of their father, the income of the Murabba is being shared by the judgment debtors and their brother and four sisters and each gets about Rs. 500/- p a. The learned Munsif has observed although that the land may stand in the names of the three brothers including the judgment debtors and four sisters and legally the sisters have a share in the property left by their father, he has surmised that ordinarily the brothers do not give any share to their sisters out of the property left by their father but only spend the amount at the time of their marriages and, therefore, it cannot be accepted when the judgment-debtors say that they give the shares of the income to the sisters and he has thus assumed that the whole income is available to the two judgment-debtors and their brother and thus the judgment-debtors are capable of paving the decretal amount. He then stops short and does not say that they have neglected or refused to pay the decretal amount. The mere non-payment of the decretal amount does not necessarily amount to a refusal or neglect to pay but it requires some intentional act on the part of the judgment debtors, which may give rise to an inference that they are refusing or neglecting

Click Here to Read the rest of this document