The petitioner herein is the defendant in PLP 47/2008 as well as the judgment debtor in EP 9/2010. In the above PLP, the decree was passed allowing the plaintiff to recover an amount of Rs.1,31,000/- with interest from the defendant. Thereafter, the respondent filed EP 9/2010 with a prayer to release the decree amount by arrest and detention of the judgment debtor in the civil prison. The petitioner entered appearance and filed an objection contending that he has no income or any means to pay the decree amount as he has no job or properties. So he is not in a position to pay the decree amount and the non-payment of decree amount is not due to his willful default. Hence he prayed for dismissal of the execution petition.
2. After considering the rival contentions, the court below rejected the objection filed by the petitioner and passed an order for arrest and detention of the judgment debtor in the civil
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prison for a period of 3 months for the realisation of the decree amount. The legality and propriety of the said order is under challenge in this revision petition.
3. In this revision petition, it is contended that the respondent has failed to prove that the petitioner has sufficient means to pay the decree amount and he has been willfully refusing to pay amount. In the absence of evidence on the part of the respondent, the court below could not have ordered the arrest and detention of the petitioner in civil prison. Nothing produced before the court below to show the petitioner's earnings.
4. Going by the impugned order itself, it is seen that though in the objection, the petitioner contended that he has no job or property and thereby he has no means to pay the decree amount. When he was examined as PW 1, he himself deposed to the effect that he is working as a driver in an English Medium School. So as rightly held by the court below, he is an able bodied man having sufficient earning capacity. It cannot be believed that a driver by profession has no earning capacity. Therefore, his own admission itself is sufficient to arrive at a finding that he is a man having sufficient means to pay the
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decree debt. That apart as rightly noted by the court below, in the Adalath, the petitioner himself agreed to pay Rs.20,000/- on or before 31.03.2008 and the balance amount of Rs.1,11,000/- in ten monthly instalments. Thus his own admission itself is sufficient to show that he has means to pay the decree debt and he has been willfully refusing to pay the decree amount. I don't find any reason to interfere with the findings of the court below. This Original Petition (Civil) is devoid of merits and dismissed.
K. HARILAL, JV JUDGE