IMPORTANT POINT
In absence of clear evidence to prove ingredients of Section 51 Proviso Clause (b) of CPC, mere inability to pay money decreed not renders judgment-debtor liable to be arrested and detained in civil prison.

K.T. Sankaran, J.—The petitioners and the second respondent are the judgment debtors in E.P. No. 32 of 2003 on the file of the Court of the District Judge, Kasaragod. The first respondent secured an arbitral award in AP No. 357 of 2000. It was put in execution by the decree holder (first respondent) for realization of the amount by arrest and detention of the judgment debtors in civil prison.

2. It is submitted that the judgment debtors were originally set ex parte before the executing Court and an order for arrest was passed against them. That order was challenged by them in CRP No. 277 of 2004 before the High Court. An order of stay was passed on condition that the judgment debtors should deposit Rs.40,000 before the executing court. They deposited the amount. The Revision was later disposed of recalling the warrant and affording an opportunity to the petitioners to adduce evidence.

3. The judgment debtors contended that they have no means to pay the decree debt or a substantial portion thereof and, therefore, they cannot be detained in civil prison.

4. In the affidavit filed before the executing court, the decree holder stated that the first petitioner (first) judgment debtor) owns an extent of more than one acre of land under Ex.A1 registered document and therefore, he has means to pay the decree debt. The decree holder also contended that the judgment/debtors have cash and immovable properties.

5. The judgment debtors contended that Ex. A1 property was sold on 12.9.1996 to Pokker as per Ex. B1 assignment deed. They have no other property. It was also stated that the first judgment debtor is an agricultural labourer and he is residing in his wife’s house.

6. The first below rejected the contentions put forward by the judgment debtors on the following grounds (a) Ex B1 sale deed was executed by the first judgment debtors on 12.9.1996, one month after the execution of the hire purchase agreement between the judgment debtors and the decree holder. The decree amount is due on account of the hire purchase agreement. It is clear that Ex.B1 was executed assigning the property to the third party “to evade from the proceedings which would be initiated in pursuance of the hire purchase agreement and to defeat the rights of the petitioner/decree holder”. (b) The judgment debtors deposited Rs.40,000 in compliance with the interim order of stay passed by the High Court in CRP No. 277 of 2004. (c) The first judgment debtor is a driver by profession and therefore, he is a man of means.

7. As regards the first ground on which the executing court found against the judgments debtors, it is to be noted that there is no case for the decree holder that Ex.B1 is a fraudulent transfer. No such contention was put forward either in the Execution Petition or in the affidavit filed by the decree holder. It is true that Ex.B1 assignment transfer. The Court below did not make any enquiry as to whether Ex.B1 is a fraudulent transfer. No evidence was adduced by the decree holder on that aspect. The learned counsel for the petitioner/judgment debtors contended that the decree holder is not entitled to contend that Ex.B1 is a fraudulent transfer as that plea is barred by limitation. It is not necessary to decide that question in this original petition, since the court below did not consider the question whether Ex.B1 amounts to a fraudulent transfer. The court below held, only on the ground that Ex.B1 was executed one month after the execution of the hire purchase agreement that Ex.B1 cannot be treated as a valid document.” This finding of the court below is erroneous.

8. The executing court found that the plea of no means is not sustainable, since the judgment debtors deposited Rs.40,000 in compliance with the interim order passed by the High Court in the Revision filed by them earlier. The fact that the judgment debtors deposited the said amount does not mean that they have the means to pay the decree debt or a substantial portion thereof. The deposit