JUDGMENT V.R. Krishna Iyer, J. 1. The judgment-debtor has come up in revision when an order for arrest and detention in the civil prison, made by the executing Court, was confirmed in appeal, Counsel for the respondent rightly took a preliminary objection that a revison was not maintainable since the matter in dispute directly fell within the scope of section 47 C.P.C. Thereupon, an application, C.M.P. No. 8333 of 1969, was moved by the revision petitioner for conversion of the C.R.P. into a second appeal. In the light of the allegation made in the affidavit filed by counsel for the petitioner I allow the prayer and direct the C.R.P. to be converted into a second appeal. 2. The 2nd defendant is one of the two judgment-debtors and the decree amount is around Rs. 2,000. The decree holder sought to execute the decree against both the judgment debtors but we are concerned in this appeal only with the plea of the 2nd defendant judgment-debtor that he has not had the means to pay the decree amount within the meaning of section 51 C.P.C. The execution petition was posted, after the counter-affidavit of the judgment-debtor was filed, to 14th February 1968 for the evidence of the decree holder who has to make out prima facie that 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. On that date, P.W. 1, the decree holder, was examined and for the evidence of the judgment-debtor the case was posted to 24th February 1968. On that date an application was filed by the advocate for the judgment-debtor praying for adjournment on the ground that his client had gone away to see a close relation of his in a hospital and could not therefore attend the Court to give evidence. This motion was rejected and in the absence of any evidence adduced by the judgment-debtor, the decree holder's evidence was accepted and the arrest and detention in the civil prison ordered. Thereupon, the judgment-debtor filed an appeal which, as I have already stated, was dismissed. Before me many contentions have been put forward, some highly technical and others less so. 3. Thereupon, the judgment-debtor filed an appeal which, as I have already stated, was dismissed. Before me many contentions have been put forward, some highly technical and others less so. 3. The first contention which merits little attention is that there is no prayer in the execution petition for detention in the civil prison since, according to counsel for the appellant, all that has been asked for is the arrest of the petitioner and if found necessary, later to send him to prison. I see no difficulty in construing this application to be in conformity with section 51 C.P.C. and the ruling cited in support of the argument, viz., 1965 K.L.J. 124 has very little to do with the point raised except that both relate to section 51 and Order 21, Rule 37 C.P.C. I need not spend more time on that point. 4. Counsel urged secondly that the executing Court, before ordering arrest and detention, should have considered the grant of an opportunity to the judgment-debtor to discharge the decree in instalments. Considering the spirit behind the provision of section 41 C.P.C, it is but fair that the executing Court extends to the judgment debtor some reasonable opportunity to pay off the decree amount by instalments and if he does agree, to hold that there is no refusal or neglect to pay the decree amount. It is possible to harmonise the provisions of section 51 proviso which insists upon the judgment-debtor having the means to pay, as a condition precedent to his being arrested and detained, with the ratio of the ruling reported in A.I.R. 1955 Mad. 409 followed in A.I.R. 1961 Raj. 243. Strictly speaking, the decree holder can execute the decree by way of arrest and detention in prison of the judgment-debtor, only if he establishes two ingredients. Not merely should lie prove the means to pay the amount of the decree or a substantial part thereof but also a refusal or neglect to pay the same. This latter ingredient may often stand negatived if the judgment debtor satisfies the court that he is ready to pay off the decree amount in reasonable instalments. Indeed, a liberal construction of that provision would fit in with the humane English practice as indicated in the Division Bench decision of the Madras High Court. This latter ingredient may often stand negatived if the judgment debtor satisfies the court that he is ready to pay off the decree amount in reasonable instalments. Indeed, a liberal construction of that provision would fit in with the humane English practice as indicated in the Division Bench decision of the Madras High Court. Mack, J., speaking for the Court, observed as follows: "The recognised practice in England in appropriate cases, as laid clown in "Barefoot v. Clark, 1949-2 K.B. 97(A) and" In re a judgment-debtor, (1935-51 T.L.R. 524) is not to make an order of committal to prison on the first application but to order payment by instalments. I can see no impediment in this practice being adopted in suitable cases under section 51, Civil P.C. read with Order 21, Rules 39 and 40, although they do not specifically direct an order for instalments first. The fixation of instalments after an enquiry into the means and the ability of the judgment-debtor to pay in many cases is much fairer to the judgment-debtor who, whilst not being in a position to discharge the decree in full, can certainly pay something towards its discharge. The fixation of instalments helps to bridge the wide gulf between the dismissal of an execution petition for arrest on a decree holder failing strictly to discharge the onus resting on him under the proviso to section 51 and the commitment to prison of a judgment-debtor who while in a position to pay something simply, cannot discharge the decree in full as he has no immediate means to do it. After the instalments have been fixed by the Court, then a failure to comply with the court order would immediately justify arrest and commitment to prison. In our view this procedure would be perfectly admissible under proviso (b) to section 51. It is equitable both to decree holder and judgment debtor and only sends to prison a judgment-debtor who refuses or neglects to pay towards the decree something which the Court has found after hearing him to be within his means to pay." In the present case, the judgment-debtor has offered to pay at the rate of Rs. 100 per mensem which, considering the decree amount over Rs. 2,000 cannot be said to be reasonable amount. 100 per mensem which, considering the decree amount over Rs. 2,000 cannot be said to be reasonable amount. It is really a mock offer and cannot be treated as an equivalent to an answer to the charge that the judgment-debtor refuses or neglects to pay the decree amount. Therefore, while I agree in principle that the approach made in A.I.R. 1955 Mad. 409 and A.I.R. 1961 Raj. 243 to the effect that before marching a judgment-debtor into the prison to force the decree amount out of him, he should be allowed to discharge it in instalments. However, since no serious offer in this behalf was made by the debtor I am unable to agree that the Courts below committed any error of law in not acceding to his anaemic request to pay paltry instalments spread over two years, the third argument that was pressed before me by counsel is that the initial burden is upon the decree holder to establish by definite evidence that the judgment-debtor has means to pay and has neglected to pay. A Division Bench decision of this Court, reported in 1967 K.L.T. 392, has been pressed into service for this purpose. True it is that the onus lies on the decree holder to prove it positively, but if evidence to satisfy the Court prima facie that the judgment-debtor has 'means' is placed, it is for the judgment-debtor to rebut it particularly because he is in a better position to disclose to the court his actual financial position and that he does not possess the various sources indicated by the decree holder. Counsel for the respondent, however, states that in the case he has discharged this initial onus through P.W. 1. According to him, even the technical contention put forward by the judgment-debtor's counsel that there is no specific advertence to the means of-the judgment-debtor with reference to the date of the decree is baseless. I agree with counsel for the appellant and with the ruling reported in A.I.R. 1964 All. 378 that the burden on the decree holder is to prove not merely means to pay the amount of the decree but also that he has such means with reference to the date of the decree. It is not unusual for quantum millionaire to be currently a pauper. 378 that the burden on the decree holder is to prove not merely means to pay the amount of the decree but also that he has such means with reference to the date of the decree. It is not unusual for quantum millionaire to be currently a pauper. In the present case, P.W. 1's evidence is to the effect that the judgment-debtor is having an annual income of Rs. 5,000 and other resources. He is speaking in the present tense and it means that since the date of the decree also he has been having sufficient means. 5. The real question is whether there is sufficient evidence on the side of the decree holder to show that the judgment-debtor (a) has means to pay the decree amount or substantial part thereof (b) has refused or neglected or refuses or neglects to pay the decree amount. If only the evidence of the decree holder had been denied on oath by the judgment-debtor I would have hesitated to hold that there was sufficient evidence to discharge the onus that lay on the former under the proviso to section 51. It must be stated that the deposition of P.W. 1 is vulnerable as vague, general, vitiated by hearsay and not reinforced by any documentary evidence. But when evidence has been given on oath that an annual income of Rs. 5,000 is being derived by the judgment-debtor and some, though few, particulars are furnished, the absence of the judgment-debtor in the witness box to deny what may well be the wishful assertions of relentless creditor is a vital defect. When a party has material evidence within his knowledge, the failure to place it before the Court, is almost fatal to his case. In this case, therefore, the effected party cannot seriously complain that the findings of the lower Courts are illegal merely because they have acted upon testimony which cannot be complimented for its quality when he has not cared to cancel its effect at least by his ipse dixit. However, counsel for the appellant pleads that he had moved for adjournment which had been wrongfully refused. He also faintly argued that, after all, the execution petition had suffered only one adjournment and the Court should not have denied him an opportunity to lead evidence by granting an adjournment. However, counsel for the appellant pleads that he had moved for adjournment which had been wrongfully refused. He also faintly argued that, after all, the execution petition had suffered only one adjournment and the Court should not have denied him an opportunity to lead evidence by granting an adjournment. This argument assumes the perverse position that every litigant has a vested right in the law's delays and insistence on diligence is an injustice. An evil because it has come to stay, cannot be treated as a prescriptive right by those who are disappointed in this illegitimate hope. Therefore, it comes with ill grace from the judgment-debtor to contend that ordinarily several adjournments are granted before evidence is started. If there was no proper ground for granting time the refusal of the adjournment in the discretion of the executing Court could not be said to be illegal. In the present case, there was no reasonable ground mentioned, justifying an adjournment. A casual statement that some one informed the advocate that his client had gone to look up a patient (name not mentioned) and therefore he could not turn up to testify to his case in Court is hardly a credible story. The disingenuous plea to postpone the hearing rightly failed. 6. Under these circumstances, the Civil Revision Petition would normally have to be dismissed. However, I have earlier held that there must be evidence not merely that the judgment-debtor has means to pay but there must also be evidence that he has refused or neglected to pay. This latter conclusion implies some opportunity being given to the judgment-debtor to discharge the decree by realistic and reasonable instalments. Recalling the ruling reported in A.I.R. 1955 Mad. 409 I should think that it would be right for the Court to give an opportunity to the judgment-debtor to pay off in instalments and make it a condition that if he defaults to pay, the entire decree amount will be recoverable. However, it is not for me to take up that question in second appeal, but for the executing Court to settle the instalments, the genuineness of the offer and connected matters- 7. One more point. The present order has been attacked by counsel for the appellant as a bald one violating the mandatory provisions of section 51. A ruling reported in A.I.R. 1956 Mad. 580 has prompted this plea, I am afraid. One more point. The present order has been attacked by counsel for the appellant as a bald one violating the mandatory provisions of section 51. A ruling reported in A.I.R. 1956 Mad. 580 has prompted this plea, I am afraid. The eloquent extract from the head note is sufficient for our purposes. " A bald order for arrest will violate the mandatory provisions of section 51 and will affect the liberty of a person and his fundamental rights. The law clearly requires the Court to give the judgment-debtor an opportunity of showing cause why he should not be committed to prison. Even if he does not appear and show cause, the court should record its reasons in writing for ordering his arrest, and the usual reason in such cases will be that it is satisfied that the judgment-debtor has or has had, since the date of the decree, means to pay the amount of the decree or some substantial part thereof and has refused or neglected to pay the same." 8. I agree that a bald order may be a bad order, but I am not prepared to agree that the present order suffers from that blemish. Nevertheless, now that I am sending the case back for other reasons and in view of the unsatisfactory nature of the evidence regarding the judgment-debtor's means, it would be fair to give to the debtor further opportunity to prove that he had no means to pay or that he had not refused or neglected to pay. But this must be on heavy terms. I think the interests of justice will be promoted by allowing the appellant an opportunity to lead evidence both on the absence of means and refusal or neglect to pay, on condition that he deposits a sum of Rs. 500 on or before 14th August 1969. If, the judgment-debtor deposits this amount to the credit of the decree holder in the executing Court on or before the date fixed, the second appeal will stand allowed and the executing Court will go into the matter de novo. Failure to deposit in time will involve an automatic dismissal of the appeal with costs.