Presumption of continuing means of husband to pay maintenance amount and deposit of maintenance amount as condition for stay of arrest.

S. C. MOHAPATRA, J.

( 1 ) DIRECTION for Civil imprisonment after arrest in an execution proceeding of decree for money is grievance of judgment-debtor in this Civil Revision,

( 2 ) MAIN ground of attack by Mr. R. K. Mohapatra, learned counsel for petitioner is that judgment-debtor having no means to pay direction is in violation of Section 51, C. P. C.

( 3 ) DECREE-HOLDER is wife of judgment-debtor. Satisfying the pre-conditions, she obtained decree for maintenance at the rate of Rs. 100/- per month. Judgment-debtor not having paid the same, she applied for execution of the decree by detention in Civil prison unless the decretal amount is paid. Despite valid service of notice, judgment-debtor not having appeared to raise objection as provided in Section 47, C. P. C. on 27-4-1989, order was passed to issue warrant of arrest for which requisites had been filed. Long four months after, Nazir returned the same unexecuted with report that Munda cheque is not available. It was directed to be reissued, On 6-11-1989 decree-holder filed a petition that in spite of the fact that execution has been filed on 27-4-1987 and direction to arrest has been issued on 27-4-1989, Nazir is not executing the same on the plea of non-availability of Munda cheque. She prayed to send the judgment-debtor direct to prison. On 10-11-1989, executing Court directed to move the District Judge. On 19-3-1990, Nazir reported that Munda cheque has been received, On that basis, executing Court directed issue of warrant of arrest against the judgment-debtor. These dates have been indicated just to highlight how a destitute wife has been deprived of her maintenance on account of procedural delay in executing court in spite of provisions for periodical inspections to control and regulate functioning of courts.

( 4 ) ). On 23-7-1990 judgment-debtor appeared and filed on application to set aside ex parte order to hear under Order 21, Rule 106 C. P. C. and Rule 40 read with Ss. 51 and 151, c. P. C. On such petition, execution of warrant of arrest was kept in abeyance till 7-8-1990, On 10-8-1990, executing Court decided not to execute warrant of arrest to give opportunity to judgment-debtor to satisfy why the decree would not executed by detention of judgment-debtor in civil prison.

( 5 ) ON 25-8-1990, decree-holder filed an application for drastic action against judgment-debtor. In the said petition supported by affidavit of decree-holder, it was asserted- (i) There are series of litigations numbering more than 12 in different forums between parties. (ii) A proceeding for vesting of ceiling surplus lands under the Orissa Land Reforms Act is pending against mother of judgment-debtor before Revenue Officer, Bargarh; (iii) Judgment-debtor is the only son of her mother; (iv) Judgment-debtor has married for the second time illegally and his mother has transferred lands in name of the second wife; (v) Judgment-debtor is owner of properties worth lakh of rupees. Yet, he has stated that he is working with his mother, He resides with his mother in a big pucca house; (vi) Although judgment-debtor has lost all the litigations with decree-holder being a capitalist, he has joined hands with some touters to entangle decree-holder in several litigations to attack her ferrociously.

( 6 ) NO objection was filed by judgment-debtor to this petition on affidavit and question of issue of warrant of arrest for execution of the decree was heard on basis of which impugned order was passed.

( 7 ) EXECUTING Court held that judgment-debtor did not dispute that various litigations have been fought between the parties and he lost in each case. It was found that judgment-debtor has deserted decree-holder and accepted a second wife, a ceiling surplus proceeding is pending against his mother and he is only son of his mother. He is living with his mother and second wife. These facts were not disputed in the executing Court. It was submitted in the executing court that decree-holder has not disclosed