Jogesh Chandra Singh vs Tinkori Datta and Others

Harries, C.J.—This is a miscellaneous second appeal by a decree-holder from an order of the learned Additional District Judge of Manbhum-Singhbhum, reversing an order of the Subordinate Judge of Dhanbad by which he had ordered the respondents to be arrested u/s 51, Civil P.C.

It appears that the decree-holder holds a decree for Rs. 1666-11-0 against the judgment-debtor respondents. Judgment-debtor 2 is a headmaster in the Santal Parganas earning a monthly salary of Rs. 112, judgment-debtor 1 earns Rs. 35, judgment-debtor 4 earns Rs. 14 a month, and the other judgment-debtor is a minor.

The learned Subordinate Judge was of opinion that the judgment-debtors had sufficient means to pay the debt or a substantial portion thereof and accordingly ordered their arrest. This order was reversed by the learned District Judge as he held as a fact that the respondents had no means to satisfy the decretal amount or any substantial portion thereof.

It is clear that a Court should not order the arrest and detention of a debtor if it is satisfied by; evidence that the debtor has not the means to satisfy the debt or a substantial portion thereof. It seems abundantly clear that the judgment-debtors other than the headmaster cannot possibly satisfy this debt or even a minute portion thereof from their wages. The salary of the headmaster is Rs. 112, and there is no doubt that if the decree was payable in small instalments, he would be able to pay small monthly instalments. Further, there seems little doubt that a portion of this salary could be attached, but no steps have been taken for attachment. The question which the learned District Judge had to decide was whether a man earning Rs. 112 a month after maintaining his family was in a position to pay this decretal amount of Rs. 1666-11-0 or any substantial portion thereof. It appears to me obvious that he cannot pay the debt or a substantial portion thereof, but he could have paid a small amount towards the debt monthly if appropriate steps had been taken. The decree-holder, on the other hand, took the drastic step of arresting the debtor, and, therefore, to succeed he had to bring his case within Section 51, Civil P.C. The learned Judge was satisfied on the respondents'' evidence that they could not pay the debt or a substantial portion thereof and his finding is conclusive in second appeal, and there is no point of law involved in this appeal. Therefore, this appeal fails, and I would dismiss it with costs.

Fazl Ali, J.

I agree.