R.S. Pathak, J.
1. This is a judgment-debtor's appeal arising out of execution proceedings.
2. A decree was obtained by Mahabir Prasad Jain for Rs. 1,993 and odd and this decree was put into execution by the arrest and detention of the judgment-debtor. The execution application was supported by an affidavit stating that the judgment-debtor was not an agriculturist and he was capable of paying the decretal amount but was deliberately refusing or neglecting to pay this amount in order to harass the decree-holder. Notice under Order 21, Rule 37, C. P. C. was issued to the judgment-debtor, who appeared pursuant to that notice, and opposed the application. Proceedings were, therefore, taken under Order 21, Rule 40 of the Code. The decree-holder led evidence in support of his application and thereafter the judgment-debtor produced evidence in rebuttal.
3. The executing Court accepted the ease of the decree-holder; and passed an order allowing the execution application by arrest and detention of the Judgment-debtor. An appeal filed by the judgment-debtor was dismissed.
4. The judgment-debtor now appeals to this Court. The Courts below have held that the judgment-debtor had sufficient means to pay the amount of the decree, and this finding is based upon the acceptance of the decree-holder's contention that the judgment-debtor had sold a shop for about Rs. 2500 and had an income of about Rs. 250 per mensem. There is no finding to the effect that the sale proceeds of the shop were received by the judgment-debtor at or about the time when the decree was passed, or that though received sometime before the same continued with the judgment-debtor. From the evidence on the record, it appears that the decree-holder could not say when the shop had been sold. The judgment-debtor admits to the sale of a house, but that, according to him took place 7 or 8 years before. The provisions of Clause (b) of the proviso to Section 51 of the Code require a finding that the judgment-debtor has or has had since the date of the decree, the means to pay the amount of the decree. The question whether he has or has had sufficient means to pay must be decided with reference to the date of the decree. This has not been done. As regards the finding that he earns about Rs. 250 per mensem, the decree-holder should have ascertained from the judgment-debtor whether he had any other claims to satisfy or other more urgent necessities to meet. No investigation by the Courts below appears to have been made in this direction. The finding of the Courts below that the judgment-debtor was liable to be arrested and detained in execution of the decree against him, is, therefore vitiated in law. The decision of this Court in Ch. Harpal Singh v. Lala Hira Lal, AIR 1955 All 402 supports the appellant.
5. It is well settled that the burden lies upon the decree-holder to make out case for execution of his decree for payment of money by arrest and detention of the judgment-debtor. This burden he has failed to discharge.
6. The appeal is accordingly allowed, the orders of the Courts below are set aside, and the objection of the judgment-debtor is allowed. The judgment-debtor is entitled to his costs of this appeal.