S. Ratnavel Pandian, J.
1. The appellant herein is the second defendant judgment-debtor in E.P. No. 159 of 1972 in O.S. No. 96 of 1967 on the file of the Court of the Subordinate Judge, Dindigul and this appeal is preferred against the order dated 20th February. 1973.
2. The above-said execution petition, E.P. No. 159 of 1972 was filed on 21st September, 1972 under Order 21, Rules 37 and 38, Civil Procedure Coda, praying for the arrest of the 2nd defendant and for committing him to civil prison, for the recovery of Rs. 17,868-41 being the amount of the decree dated 31st October, 1968 in the abovesaid suit. The suit was filed by the respondent plaintiff against this appellant and five others for a claim of Rs. 12,542-45 with interest and costs, since the first defendant viz., one Tmt. Saral, who took the chit in auction for the sixth call on 24th May, 1966, failed to pay the subsequent instalments of the chit amount. This appellant and defendants 3 and 4 executed guarantee-letters standing as sureties for the first defendant Tmt. Saral. The suit was decreed as against defendants 1 to 4 and the same was dismissed as against defendants 5 and 6. So, the respondent-plaintiff has proceeded against this appellant on the strength of the decree for the recovery of the amount with interest and costs outstanding as on the date of this execution petition.
3. The respondent-plaintiff took proceedings in E.P. No. 94 of 1967 by attaching the properties of the appellant-2nd defendant. A claim petition E.A. No. 255 of 1967 was filed and that claim had been allowed and hence E. P. No. 94 of 1967 was dismissed on 31st January, 1970. Another execution petition was filed in E.P. 1970 seeking to arrest defendants 2 to 4 and the same was dismissed on 8th April, 1971.
4. Now in the affidavit filed in support of this execution petition, the respondent-plaintiff contends that the appellant 2nd defendant has got silk cotton estate lands worth Rs. 20,000, a house worth Rs. 5,000 moveablse worth Rs. 2,500 and other means. It is further contended that the second defendant is having a monthly income of Rs. 500 and has also got a cash of Rs. 1,500.
5. In the counter statement, the appellant, second defendant contended that he has no means to pay off the decree amount, that he is being supported only by his sons that the dismissal of E.P. No. 136 of 1970 would operate as resjudicata to the present proceeding and that the present petition is not maintainable.
6. Before discussing the merits of the case, I may on the question of res judicata I point out that the principle of res judicata I cannot be applied too rigidly in execution proceedings and I am in full agreement with the view taken by the lower Court.
7. In attempting to prove his case, the respondent-plaintiff examined himself as P.W. 1 and marked Exhibits A-1 and A-2. In addition to these three more documents Exhibits B-1 to B-3 were marked, during the cross-examination of R.W. 1. On the appellant-defendant's side, the appellant examined himself as R.W. 1. The appellant has filed an application before this Court, praying to condone the defects in the affidavit and to mark additional documents. The said additional documents have been marked as Exhibit B-4 to B-6 under orders of this Court.
8. Now, the point for consideration is whether the appellant-2nd defendant has the means to pay the amount of the decree or a substantial part thereof and is refusing or neglecting to pay the same.
9. Exhibit A-1 is the personal statement of the appellant as guarantor, declaring that he had properties worth about Rs. two lakhs, which would yield an annual income of Rs. 20,000 apart from the possession of jewels worth about Rs. 20,000. In the counter, the appellant has denied those allegations and has stated that he has no means. In the absence of evidence to prove the capacity of the appellant to pay off the decree amount, the statement of the appellant as guarantor in Exhibit A-1 will not by itself prove that he has the means to pay the decree amount, rendering himself liable to be arrested and committed to civil prison. It is also pertinent to note that the averments in Exhibit A-1 relating to the properties of the second defendant have not been proved to be true by the respondent-plaintiff.
10. Further the respondent has marked Exhibit A-2, the certified copy of petition and orders in E.P. No. 108 of 1972 in O.S. No. 405 of 1970, Sub-Court, Dindigul. In this execution petition, part-payment has been made by the judgment-debtors. Exhibit B-4 and Exhibit A-2 reveal that in E.P. No. 108 of 1972, the wife of the appellant is also one of the defendants and it is contended by the appellant that the part-payment has been made out of the income of his wife. To prove this, Exhibit B-5 has been marked in this Court. So, Exhibit A-2, marked by the respondent to prove that the appellant has been making part-payment to another decree-holder, will not in any way support the contention of the plaintiff that the appellant has or has had the means to pay the decree amount or a substantial part thereof and that he is refusing or neglecting or has refused or neglected to pay the same.
11. In V.K.S. Sivam v. Thirupathiswami : AIR1972Mad9 Ganesan, J., has held that even if the judgment-debtor owns some immovable property, in the absence of the evidence to show that he is in possession of that property of that he is in a position to realise from them any substantial cash by sale, mortgage etc., it is not possible to decide whether the judgment-debtor has got means to pay up the decree amount or a substantial portion thereof. The other three documents in this case, Exhibits B-1 to B-3 are not of any use to the plaintiff. The first two documents Exhibits B-1 and B-2 are a sale deed dated 16th December, 1963 and a gift deed dated 16th January, 1963, executed by the appellant. Exhibit B-3 is a true extract of the property tax demand register for the years 1963-64 to 1970-71, standing in the name of Ramayammal, wife of the second defendant (appellant herein). Exhibits B-1 and B-2 are transactions that took place about four years prior to the date of decree. Then there is absolutely no evidence to show that the appellant has acquired means after the passing of the decree and had means on the date of the filing of the present execution petition. The burden of providing that the judgment-debtor has got the capacity to pay lies on the decree-holder. In Kanhaiyalal v. Mahavir Prasad Jain : AIR1964All378 , the judgment-debtor admitted the sale of a house, but contended that it took place 7 or 8 years before. It was' held in that case that the question whether he had or had not sufficient means to pay must be decided with reference to the date of the decree, which had not been done, with the result that the finding of the Courts below that the judgment-debtor was liable to be arrested and detained in execution of the decree against him was vitiated in law. The Court further observed:
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.
12. The learned Counsel for the respondent relied on a judgment dated 18th January, 1973 rendered by a Division Bench of this Court consisting of Kailasam and N.S. Ramaswami, JJ., in C.M.A. No. 86 of 1968 viz., Ranganatha Padayachi v. The Mayavarcmi Financial Corporation Ltd Noted in 1973 T.N.L.J. 54. After going through the entire judgment rendered in that case, I find that there an order for arrest was issued by the executing Court under Order 21, Rule 37, Civil Procedure Code. In that case, the executing Court had not gone into the merits of the question whether the judgment-debtor had means to pay the decree amount, when it ordered the arrest. That is why the Division Bench held that the order for arrest was not without jurisdiction. The Court has made a distinction between an order of arrest without an enquiry and an order of arrest issued after going into the merits of the question whether the judgment-debtor had means to pay. In this case, the lower Court has gone into the merits and given a finding on the said question and ordered arrest. Thus it is clear that the decision of the Division Bench is not helpful to the case of the respondent-plaintiff.
13. The learned Counsel for the respondent-plaintiff further contended that in Exhibit B-5 viz., the counter-affidavit filed by the plaintiff in E.P. No. 108 of 1972, the appellant has prayed that the Court might order for payment of Rs. 100 per month and dismiss the petition and that shows that the appellant has got some substantial amount with him and has got the capacity to pay. But, from the averments in paragraph 3 of the said affidavit, it is very clear that the appellant has unequivocally stated that he would make part-payment at Rs. 100. per mensem from the income of his wife. Regarding the contention that the appellant has got substantial means, it is relevant to point out that the House of Lords in Palser v. Grinling etc 1948 A.C. 291, while discussing the meaning of the word ' substantial ', has observed at page 317, thus ;
One of the primary meanings of the word is equivalent to, considerable, solid or big. It is in this sense that we speak of a substantial fortune, a substantial meal, a substantial man, a substantial argument or ground of defence. Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances in each case, the onus being on the landlord.
14. Thus, the plaintiff-decree-holder has to prove to the satisfaction of the Court that the appellant has got substantial means to pay off some substantial part of the decree. But, he has failed to do so. There is nothing on record for me to hold that the appellant has got the means to pay any substantial part of the decree amount and he refuses or neglects or has refused or neglected to pay the same. Therefore, I hold that the appellant has no means to pay the decree amount.
15. In the result, the appeal is allowed and the order of the lower Court is set aside. There will be no order as to costs.