1. ' This appeal arises from the order passed by the Executing Court, whereby warrant of arrest was issued against the appellant, who was J/D and the decree was passed by the. Banking Court No,2 in favour of respondent No,
1. The decree was for Rs,24,05,590. The mortgaged property was sold and a sum of Rs,5,25,000 was recovered leaving balance of Rs,18,80,590. Against this outstanding amount, the appellant gave an assurance and issued cheques but the same could not be honoured and the Executing Court passed order of imprisonment of the appellant for a period of one year under section 55, C.P.C.. The appellant preferred appeal against the said order and deposited a sum of Rs,8,50,000 with the Nazir of this Court and sought his release. However, this appeal was dismissed for non-prosecution on 6-2-2008. The appellant then filed restoration application. Notice was issued to the respondent.
2. ' Counsel for the respondent No,1 has submitted that respondent No,1 is interested in the recovery of the decretal amount and has no objection if the appeal is restored and disposed of on merits. She further contends that if an amount of Rs,8,50,000 lying deposited with the Nazir of this Court be released to respondent No,1 and the appellant be directed to pay the remaining amount.
3. ' Keeping in view the above statement of the learned counsel, we restored this appeal and took up the same for hearing.
4. ' Counsel for the appellant states that the appellant has not intentionally committed the default in payment of the decretal amount as he was out of job for years and now he has A got a job and shall pay the amount in instalments.
5. ' We are of the view that the J/D cannot be ordered to be imprisoned only because he is unable to satisfy the decree. Order of imprisonment is to be passed only where the J/D became dishonest and conceals his financial resources from which he can satisfy the decree. Out of the balance decretal amount of Rs,18,80,590 a sum of Rs,8,50,000 has been deposited by the appellant in this Court, the same is ordered to be released to respondent No,1 upon proper verification.
6. ' With regard to the balance amount of Rs,8,30,590 with future cost of funds, the appellant shall disclose before the Executing Court all his sources of income as well as list of properties which he, his wife or his children own. All this information shall be placed in the shape of an affidavit to be sworn by the appellant within 15 days from this order.
7. ' Respondent No,1 shall be fully entitled to confirm the genuineness of such affidavit and in case it is subsequently found that the appellant has concealed his properties or financial resources from which decree could have been satisfied, the Executing Court shall be free to pass order in terms of section 55, C.P.C. And order his arrest.
8. ' With the above observations, this appeal stands disposed of.