ASTHANA, J. :- A decree for arrears of rent amounting to about Rs. 5,000/- and odd including mesne profits and interest was sought to be executed against the judgment-debtor-appellant by his arrest and detention in Civil prison, under Section 51 (b), C. P. Code. The decree-holder had obtained a decree on 16-11-1968 for eviction of the defendant-judgment-debtor from a house and for recovery of arrears and mesne profits. On 27-11-1968, only ten days after, the decree holder put the decree in execution and applied for the arrest of the judgment-debtor in so far as the recovery of the arrears and mesne profits were concerned on the allegation that the judgment-debtor had means to pay the amount of the decree but refused or neglected to pay the same. Since the judgment-debtor had already vacated the house, the decree was partly satisfied. On a notice having been sent to judgment-debtor he filed an objection to the effect that he had no means in his possession to pay the decretal amount. The learned Munsif on the evidence on record found that the judgment-debtor was working as a Textile agent earning an income of about Rs. 15,000/- a year but he had not saved any amount, was highly indebted and had no sufficient means on the date of the decree to pay off the decretal amount. The application of the decree-holder for execution of the decree by arrest was dismissed. On appeal by the decree-holder the learned Civil Judge held that the judgment-debtor having earned Rupees 15,000/- a year must be deemed to have made considerable saving as there was no evidence adduced on his behalf about his expenses. The appeal was allowed and the judgment-debtor was sent to civil prison.

2. It has been urged on behalf of the judgment-debtor appellant that the finding recorded by the learned Judge of the lower appellate court to the effect that the judgment-debtor made considerable saving and thus was in possession of cash sufficient to meet the decreed demand, is conjectural and has been arrived at by throwing the onus on the judgment-debtor hence is vitiated. On the other hand, it was urged for the decree-holder respondent that the finding cannot be said to be conjectural inasmuch as on the facts established a presumption of fact naturally followed that the judgment-debtor had considerable cash with him and a finding based on such a natural presumption would be a good finding of fact binding in second appeal.

3. It is not the case of the decree-holder that the judgment-debtor was possessed of any assets other than money. The only evidence which was adduced by the decree-holder was that the judgment-debtor was working as a Textile agent and earning considerable amount of money as commission. Both the Courts below recorded a concurrent finding that the judgment-debtor was working as a Textile Agent which produced an income of about Rs. 15,000/- a year. The two courts below have differed on the question whether the judgment-debtor saved any amount. I think it was for the decree-holder to prove by evidence on record that the judgment-debtor actually saved some money every year and kept it aside, not necessarily in a Bank. The decree-holder would not succeed merely by adducing evidence to the effect that the judgment-debtor was working as a Textile Agent earning Rs. 15,000/- a year. Under Section 51 (b) C. P. Code the decree-holder has to satisfy the court 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. Learned counsel for the decree-holder respondent referred to a decision of the Madras High Court in V. P. Madhavan Nambiar v. Chaldean Syrian Bank Ltd, AIR 1955 Mad 409 in support of his submission that it is sufficient for a decree-holder to establish that the judgment-debtor had the ability or capacity to pay in order to meet the statutory requirements of Section 51 (b) as the Court can legitimately draw an inference of fact that the judgment-debtor ha