Bank of Bihar Ltd. vs Bihari Prasad

Kulwant Sahay, J.—This is an appeal by the decree-holder against an order of the District Judge of Gaya dismissing his appeal against the order of the Mansif who had released the judgment-debtor on the ground of poverty under Order 21, Rule 40, Civil P.C. The case of the decree-holder was that the judgment-debtor had Concealed or removed his property after the date of the institution of the suit and that he was not unable from poverty or for sufficient cause to pay the amount of the decree.

The decree-holder filed an affidavit to this effect and examined a witness in support of it. The judgment-debtor examined himself and he examined a pleader who states that the judgment-debtor was related to him as the cousin of his father-in-law''s father-in law. The learned Judge does not, in his judgment, deal with the question as regards the concealment or removal of the property by the judgment debtor after the institution of the suit, but he finds that the judgment-debtor has proved his poverty.

Order 21, Rule 40, distinctly provides that before making an order of release under Sub-rule (1) the Court may take into consideration any allegation of the decree-holder touching any of the matters set out in Sub-rule (2), and one of the masters set out in Sub-rule (2) is the fact of transfer, concealment or removal by the judgment-debtor of any part of his property after the date of the institution of the suit in which the decree was passed. The Courts below were invited to come to a finding on this point and there was an allegation made that there was a concealment or removal of the property by the judgment-debtor after the institution of the suit.

It was proved in the case that the judgment-debtor was the owner of a firm which dealt in flour and ghee. The evidence of the decree-holder is that stock worth Rs. 4,000 was kept in the shop and the judgment-debtor ceased to hold the shop after the institution of the suit.

It is contended on the side of the judgment-debtor that this evidence is not sufficient and that it was the duty of the decree-holder to prove that the property in the shop or the money value of the property in the shop came into the possession of the judgment-debtor after the firm had ceased to exist. Now the judgment-debtor admits that he was the sole proprietor of this firm. The decree-holder cannot be expected to prove facts which were peculiarly within the knowledge of the judgment-debtor and it was for the judgment-debtor to prove what became of the articles in the shop after the dissolution of the shop. The only evidence of poverty given by the judgment-debtor is the evidence of his distant relation, the pleader, who says that the judgment-debtor is a cousin of his father-in-law''s father-in-law.

This witness merely swears that the judgment-debtor is an employee of the Indian Transport Company: but the witness does not know the pay he gets there. In cross-examination this witness is forced to admit that he does not know anything about the firm.

All that he says is that the firm does not exist now. He further states that he does not know if there were any assets in the firm when it was dissolved, He is, therefore, not a fit witness to give evidence as regards the poverty of the judgment-debtor. The judgment-debtor himself, who is the only other witness in the case, states that he was the sole proprietor of the firm and that the firm dealt in flour and ghee but he never stocked flour and ghee of any value. He, however, admits that he used to deal in the said articles to the extent of Rs. 200 to Rs. 400. In my opinion this evidence is not sufficient to prove the poverty of the judgment-debtor in order to entitle him to release under Order 21, Rule 40(1). On the other hand, the evidence adduced by the decree-holder tends to show that the judgment-debtor had property till after the institution of the suit and he had failed to explain what became of it.

It is contended on behalf of the respondent that the findings of the Courts below are findings of fact based upon the evidence and it is not open to this Court in second appeal to interfere with these, findings. Now, the Court below has failed to consider the question as regards the concealment or the removal of the property.

This is a ground for setting aside the order and for making a remand to the lower appellate Court for re-consideration of the appeal with reference to the question of concealment or removal of the property; but u/s 103, Civil P.C. it is open to this Court, instead of making a remand to finally decide the question after a consideration of-the evidence in the case. The evidence in the case consists only of three witnesses and the affidavit filed on behalf of the decree-holder. We have considered that evidence and we are satisfied that the evidence is not sufficient to prove the poverty of the judgment-debtor in order to entitle him to a release under Order 21, Rule 40(1).

The order of the Court below is set aside and the execution will proceed by the arrest and imprisonment of the judgment-debtor as applied for.

Macpherson, J.

I agree.