S.C. Pratap, J.
1. As respondent No. 1-original defendant failed to pay the decretal dues of the petitioner-plaintiff under the decrees passed in his favour in Summary Suit No. 2249/3317 of 1975 and Summary Suit No. 2250/3318 of 1975, the plaintiff took out two notices for detaining the defendant in civil prison. As both these notices related to the same parties with the same facts and law involved, both the notices were disposed of by the learned trial Judge by a common judgment. By the said judgment, the learned trial Judge discharged both the notices. It is against this order that the plaintiff has filed the present revision application.
2. In support of the petition, I have heard Mr. S.N. Satpute, learned Counsel for the petitioner-plaintiff instructed by Mr. P.M. Khankar. Respondent No. 1 - defendant though served has not chosen to appear either personally or through any Advocate of this Court.
3. The learned trial Judge has discharged the notices on the ground that though the defendant did have means to pay the decretal amount, the said means cannot in law be taken into consideration as his means because the said means consisted of his wages which were liable to be excluded from consideration while considering the defendant's means to pay. Now, the relief asked for by the plaintiff was in terms of section 51(c) of the Code of Civil Procedure viz., arrest and detention in prison of the defendant-judgment debtor. Proviso to section 51 states that where the decree is for payment of money, indeed in this case it is, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied that (to the extent relevant here) 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 and refuses or neglects or has refused or neglected to pay the same. Explanation to this proviso states that in the calculation of the means of the judgment-debtor, there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree. To find out what property is exempt from attachment of a decree, reference to section 60 of the Code of Civil Procedure is necessary. Under the said section and to the extent relevant here, the wages of labourers, whether payable in money or in kind, shall not be liable to attachment. It is in the light of these provisions that the learned trial Judge has discharged the notices even though the material and record more than satisfactorily establish that the defendant did have the means to pay but the said means consisted of his wages even though the said wages were of quite a high order as indicated by the fact that the defendant was also paying income-tax.
4. Mr. Satpute, learned Counsel for the plaintiff, submitted that the learned trial Judge has confused the question of wages due and payable to the defendant from wages received by the defendant and consequently partaking the character of property or money. His submission is that wages due and payable to the defendant may not be liable to attachment in view of the legal provisions referred to above but wages received by the defendant would after such receipt cease to be wages so called and would on receipt partake the character of the defendant's property or money. The learned Counsel supported his contentions aforesaid by reference to a Division Bench ruling of this Court in Pralhad Gangadhar Joshi v. Mst. Sakubai Pralhad Joshi, : AIR1961Bom142 .
5. Going through the aforesaid Division Bench ruling and bearing in mind the ratio thereof and applying the same to the facts and circumstances of the present case, there should be no doubt that the impugned order is liable to be reserved and the two notices taken out by the plaintiff against the defendant will have to be made absolute. In the first place, the plaintiff here does not seek to attach the wages of the defendant. Submission is that the defendant has sufficient means to pay and yet refuses or neglects to discharge his liability under the decrees. As held in Pralhad Gangadhar's case (supra) :
'What Clause (i) of the proviso to section 60(1) prohibits is that the salary qua salary cannot be attached or be brought to sale. The amount of the salary which the judgment-debtor has already received can be taken into account in judging his means under section 51 because it was no longer salary after receipt by him and, therefore, no longer subject to the bar against attachment or sale.'
Thus, the wages of the defendant once received by him would cease to be wages as such and the prohibition under section 60(1)(h) against attachment thereof cannot thereafter apply. The wages, which the defendant has already received, can consequently be taken into account in judging the means under section 51 because on receipt thereof the wages are no longer wages and consequently no longer subject to the bar against attachment.
6. Once this position is reached, as indeed it must in the light of the aforesaid Division Bench ruling, question next to be determined is whether the defendant here has the means to pay and has inspite thereof refused or neglected to pay. On this question, the finding of the learned trial Judge has been in favour of the plaintiff and the said finding is based not on any conjecture or surmise but on the admissions of the defendant himself. Undisputed position is that the defendant's income was more than Rs. 1000/- per month. Further undisputed position is that the defendant pays income tax. The learned trial Judge has further found that the defendant is liable to pay the decretal amount as can be seen from his own admission. But as observed by the learned Judge :
'..............the defendant is taking an advantage of the legal provisions and taking shelter under such provisions, and though financial condition of the defendant is such that he can pay the decretal amount and that it appears that he is avoiding the payment of the decretal amount intentionally by taking advantage of the legal provisions, the legal provisions are on the side of the defendant and, therefore, I am constrained to discharge the case notices taken out by the plaintiff.................'
The legal position as found by the learned trial Judge is, as indicated by virtue of the aforesaid Division Bench ruling not correct. The wages received by the defendant would, after receipt, cease to be wages and, therefore, would constitute within the meaning of section 51 proviso (b) 'means to pay'. The finding of fact recorded by the learned trial Judge is that the defendant does have means to pay. Irresistible conclusion, therefore, is that here is a defendant who though has means to pay yet refuses or neglects to pay the decretal dues and has refused and neglected to pay the same. If that is the position, relief claimed by the plaintiff deserves to be granted.
7. However, instead of straightway passing an order for detaining the defendant in civil prison. I feel that the defendant should be given one more opportunity to pay the decretal dues. In default thereof, order as prayed for by the plaintiff will have to follow. Hence the following order on this petition :---
The impugned order dated January 16, 1981 passed by the learned trial Judge in Case Notice No. 92 of 1980 (in Summary Suit No. 2249/3317 of 1975) and in Case Notice No. 93 of 1980 (in Summary Suit No. 2250/3318 of 1975) is set aside. The defendant is granted final opportunity to pay up the decretal dues under the decree passed by the trial Court in Summary Suit No. 2249/3317 of 1975 and Summary Suit No. 2250/3318 of 1975. If the defendant pays up the entire decretal dues within a period of sixty days from the date of receipt of writ hereof by the trial Court, decrees in question to be marked satisfied and further proceedings to be dropped. However, in the event of the defendant failing to pay the full decretal dues within the period hereinabove directed order forthwith to issue for his arrest and detention in terms of section 51(c) read with section 55 and section 58 of the Code of Civil Procedure. Further directions in compliance with this order shall be issued and given by the trial Court.
8. This petition is thus allowed. Rule earlier issued on this petition is made absolute. In the circumstances of the case, however there will be no order as to costs of this petition.