(1) This appeal is directed against an order of an additional District Judge of Muzaffarpur who dismissed an appeal preferred by the judgment-debtor against the order of the Subordinate Judge dismissing his application under Section 77 of the Civil Procedure Code. The respondent filed a suit against the appellant and other members of his family to recover a certain amount on the basis of a promissory note executed by the judgment debtor appellant. The suit was dismissed for default on 3-9-57. An application for restoration of the suit was filed by the plaintiff respondent under Order 9, Rule 9 of the Code of Civil Procedure. In pursuance of a compromise petition filed by the parties, a consent order was passed on 17-9-57 restoring the suit and decreeing the suit for Rs. 7586 and odd against two of the defendants, namely, defendants 3 and 4. Defendant No. 3 was the appellant and his son was defendant No. 4. The execution proceeding, out of which this appeal arises, was started by the respondent decree-holder against judgment debtor No. 1, that is, defendant No. 3 who is the appellant, only, with a prayer for realisation of the decretal dues by arrest and detention in the civil prison. After the service of notice under Order 21, rule 22 of the Code, the appellant filed the aforesaid application under Section 47 asserting that the decree-holders dues could not be realised from him by arrest and detention in civil prison as the conditions laid down in the proviso to Section 51 of the Code were not fulfilled. The decree-holder respondent examined himself in support of his contention that the appellant did not pay the decretal dues in spite of the fact that he had means to pay the same since the passing of the decree, while the appellant examined himself in support of his application under Section 47 of the Code, the other two witnesses being formal. Both the courts below accepted the case of the decree-holder and consequently the application under Section 47 was dismissed.

(2) Mr. Lal Narain Sinha, appearing on behalf of the judgment-debtor appellant drew our attention to Rules 37 and 40 of Order 21 read with Section 51 of the Civil Procedure Code. The object of these provisions is to afford protection to honest debtors who are incapable of paying their dues for reasons beyond their control and who have not committed any act of bad faith. The test is whether the debtor is unwilling to pay in spite of his means to pay. The circumstances which justify an order for arrest are contained in Section 51 of the Code, which provides for the different modes of execution of a decree and lays down that, where the decree is for the payment of money, 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.

"(a) that the judgment-debtor, with the object or effect of obstructing or delaying with the execution of the Decree. (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b) 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 or, (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account".

Clause (c) does not apply to the instant case nor Sub-clause (i) of Clause (a). It is, therefore, to be seen whether the judgment-debtor, with the object of obstructing or delaying execution of the decree has, since the passing of the decree, dishonestly transferred, concealed or removed any part of the property or committed any act of bad faith, or having had means to pay the decree has refused or neglected to pay the same. In the instant case, having gone through the evidence of the two witnesses examined on behalf of each party, we do not find any of the circumstances mentioned in any of these clauses. The decree-holder stated that the judgment-debtor was still joint with his brothers and father and they had 30 bighas of land inclusive of Khatiani and recently purchased lands; but no document was filed support of the same. In cross-examination the decree-holder expressed his ignorance as to when the recently purchased land had been acquired. He did not see the sale deeds under which the land was said to have been purchased by the judgment-debtor and others of his family, nor had he seen any of the sale deeds, nor was he present at the time of the execution or registration of any of the sale deeds. He could not say the boundaries of any land belonging to the judgment-debtor and other members of his family He had not even filed any petition for taking copy of the survey proceedings He did not even make any enquiry from the landlords office or seen any paper relating to the land of the judgment-debtor and other members of his family. On the other hand, the appellant-judgment debtor said that he was separate from his father and other members of his family since 15 or 16 years and that in his share he had got only 16 kathas of land He denied having any property in the name of his wife and said that he did not conceal any property The learned Addl. District Judge relied on certain statements in his deposition and reproduced the same in his judgment which reads thus :-

"No land of mine has been recorded in the recent survey going on in the village. I do not know in whose name that 16 kathas of land has been recorded in the current survey operation. I do not know if lands are recorded in khata No. 220 in my name under touzi No. 13564. I do not know if lands in extensive area have been recorded under khata 404 of Touzi No. 13569 in the current survey. I do not know if lands are recorded in the names of my brothers. I do not know what area of lands are owned and possessed by my father. I do not remember the calendar year and month when I had separated from my father and brother. I do not know how much land went to my father and brother on partition. I do not know what rental is payable for my land".

The learned Judge then observed that one could not help getting the impression that the appellant, by pretending ignorance, has tried deliberately to suppress the facts and his assets from the Court and that the proviso to Section 51 CPC was not enacted to give protection to such a judgment debtor. This inference is not justified, because the onus to bring a case within one or more clauses of the proviso to Section 51 C.P.C. is on the decree-holder who wants the judgment-debtor to be arrested and detained in civil prison. The learned Judge relied on an observation in the case of V. P. Madhavan Nambiar v. Chaldean Syrian Bank Ltd., AIR 1955 Mad 409 [LQ/MadHC/1954/287] , which reads as follows:--

"In my view it is perfectly open to a court to apply a judicial corrective to the extreme lengths to which the onus which Act 9 of 1935 casts on decree-holders is sought to be taken by adopting the view that it is perfectly open to an executing court on all the material placed before it to come to an inference as regards the statutory findings required by provisos (a) (2) and (b) of Section 51. Civil P. C. It is also no doubt true that the onus rests on the creditor to prove the debtors ability to pay, and mere disbelief of the latters statement that he had no means to pay is not sufficient. Where, however, there is sufficient material shown to warrant an inference, as in the present case, that the judgment debtor has actually been in the possession of substantial assets a few months prior to suit, an inference is perfectly justifiable that he has since the institution of the suit dishonestly concealed them and, furthermore, that he has since the date of the decree means to pay a substantial portion of it from assets he is concealing from the Court."

Act 9 of 1935 referred to in this quotation appears to be a printing error for Act 21 of 1936. Learned Counsel for the appellant, however, contended, on the observation of their Lordships, that it is open to apply a judicial corrective to the extreme length to which the onus is cast on the decree-holder. In our opinion, the court has to interpret the law as it is and it cannot minimise the rigor of the onus. It is, of course, true that the court has to consider all the materials placed before it, in order to decide whether the onus has been discharged by the decree holder. In the Madras case, referred to above, there were sufficient materials which justified the inference that the decree-holder had discharged that onus and the judgment-debtor was liable to be arrested and detained in civil prison. In the instant case, however, there is no material at all on the basis of which it can be said that the decree-holder has discharged the onus. Though he was in a position to produce documents and witnesses in support of the general statement that the judgment-debtor and the other members of his family were still joint and that they had 30 bighas of land, he did not choose to produce the same. This general statement of his was rebutted by the evidence of the judgment-debtor. From the fact that by the compromise the plaintiff, who is now the decree-holder, agreed to forgo his claim against all the members of the family of the judgment-debtor except himself and his son, because they had taken the plea in the suit that the judgment-debtor and his son had separated from the other members long before, the reasonable inference is that the alleged separation had taken place some time before the compromise, even though it, might not have taken place 15 or 16 years back, as stated by the judgment-debtor in his evidence in the instant case. Further, the mere fact, that the judgment-debtor had not produced his khatians or any document is not sufficient to draw the inference that he had been concealing any property, particularly when he definitely stated in his examination in chief that he had not concealed any property. So far as the question of onus is concerned, it is enough to refer to a Bench decision of the Allahabad High Court, in the case of Ch. Harpal Singh v. Lala Hira Lal, AJR 1955 All 402, [LQ/AllHC/1954/284] wherein it was held that, whether the judgment debtor files any written objection or not after the service of notice on him, it is for the decree-holder to lead his evidence in the presence of the judgment debtor in support of his application and should have reference to the grounds which, according to the decree-holder, would justify the arrest of the judgment-debtor and and it will be only when the decree-holder has led prima facie evidence in support of his application that the judgment-debtor has to be given an opportunity of showing cause why he should not be committed to the civil prison. Substantially, the same view was taken by Mr. Justice K. Sahai in the case of Badrinarain Choudhary v. Municipal Commissioner. Muzaffarpur Municipality, 1964 BLJR 617 His Lordship held that it would not be a sufficient compliance with Section 51, if the decree-holder merely says vaguely that the judgment-debtor has movable and immovable properties from which he can pay the decretal amount.

(3) From a persual of the judgment of the courts below, it is manifest that the finding that the decree-holder had been able to bring the case within the relevant clauses of the proviso to Section 51 of the Code of Civil Procedure is based on no evidence, and, therefore, we are entitled to take a different view in this case. In view of the foregoing discussions, we hold that there is absolutely no material on the record in the instant case to justify the arrest and detention of the judgment debtor appellant in civil prison.

(4) The next question is whether the judgment-debtor had, by virtue of the contents of the compromise petition, waived the privilege conferred on him by the proviso to Section 51 of the Civil Procedure Code. The learned Judge has referred to Clause (d) of the compromice petition in which it was stated that on the failure of any of the instalments on the due date the entire remaining decretal amount would become payable at once and would be realisable from "the person and properties of defendants Nos. 3 and 4". It was argued by Mr. Lal Narain Sinha on behalf of the appellant that the portion of Clause (d) of the compromise petition stated above does not mean that defendants 3 and 4 of the suit meant to forego this privilege. What they really meant was that in case of default, the decree-holder would be entitled to realise the dues from their person and properties in accordance with law. It may be mentioned here that defendant No. 4 is a minor son of defendant No. 3 who is the appellant in this court. Mr. S. K. Jha, on the other hand, contended that in Clause (d) of the compromise the appellant did forgo his privilege; but we are unable to agree with him and we accept the contention of Mr. Lal Narain Sinha.

(5) In the alternative, Mr. Sinha submitted that the privilege conferred by the proviso to Section 51 of the Code of Civil Procedure on the judgment debtor cannot be waived at all. It is well settled that every one has the right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with, without Infringing any public right or public policy: See Maxwell on Interpretation of Statutes, Eleventh Edition, page 376. In the case of Basheshar Nath v. Commissioner of Income Tax, Delhi and Rajasthan, AIR 1959 SC 149 [LQ/SC/1958/148] , it was held that, where a right or privilege guaranteed by law rests in the individual and is primarily intended for his benefit and does not infringe on the right of others, It can be waived, provided such waiver is not forbidden by law and does not contravene public policy or public morale. It is apparent that waiver of the privilege conferred by the proviso to Section 51 of the Code does infringe the public policy, because by inserting this privilege for the judgment- debtor in Section 51 of the Act of 1908, the Legislature was guided by public policy, namely, that a debtor should not be put in the prison, when he is unable to pay his debt for reasons beyond his control. Mr. S. K. Jha, however, submitted that some of the privileges conferred on the judgment-debtor by Section 60 of the Civil Procedure Code could be waived and, therefore, the privilege conferred by the proviso to Section 51 of the Code should also be waived. He has, like the court below, relied on four decisions, namely, Raja Chetty v. Jogannathadas Govindas, AIR 1950 Mad 284 [LQ/MadHC/1949/276] , Ganga Bishun Ram Gajadhar Ram v. Jagmohan Ram, AIR 1927 Pat 233 [LQ/PatHC/1926/162] , Uzir Biswas v. Haradeb Das Agarwalla, 24 Cal WN 575 = (AIR 1920 Cal 424) and Mahadeo Agrahri v. Dhaunkal Mal, AIR 1946 All 432 [LQ/AllHC/1945/177] . In the Madras case, which was in respect of the Madras Buildings (Lease, Rent and Control) Act, 1946, there was a document of lease which expressly provided that, if the rent remained unpaid for two tenancy months after it became payable, the landlord would be entitled to re-entry upon the demised premises. Section 7(2)(i) of the Act, however, provided that the landlord may be entitled to apply for eviction even when there was default, in payment of a months rent. The question raised was whether in a document of lease the landlord could make a contract for forgoing his privilege of going to court for eviction of the tenant on the letters default in making the payment of a months rent. It was held by their Lordships that such a contract was quite valid, as the privilege given to the landlord by section 7 of the Act could be waived, if such a waiver would not infringe any public right or public policy. It is obvious that the provision regarding the eviction on default of the payment of the rent for a month does not involve public policy. The other three decisions deal with the waiver by the judgment-debtor in respect of his privilege under Section 60(1)(c) that his house could not be attached in execution of a money decree; and it was held by their Lordships that such a waiver was permissible. In the Calcutta case there were other properties also besides the house, but they were also not attachable in law. Sub-section (1) of Section 60 contains a list of properties which are liable to attachment and sale in execution of a decree and then there is a proviso to the effect that, in spite of the contents of that list, some properties shall not be liable to such attachment or sale. According to Clause (c) of the proviso, houses and other buildings belonging to an agriculturist and occupied by him cannot be attached. It is, therefore, apparent that it is for the judgment debtor to claim this privilege by proving that he is an agriculturist and occupies the house. It is, therefore, clear that the judgment-debtor can forgo such a claim. On the other hand, the proviso to Section 51 enjoins on the court itself not to order arrest and detention of the judgment debtor in prison unless the court, for reasons recorded in writing, is satisfied that the materials on the record of the case come within any of the clauses of the proviso. In other words, it is a mandate to the court by the Legislature as a matter of public policy with a view to implement its object by protecting debtors who cannot pay their debts for reasons beyond their control. Irrespective of the fact whether the judgment debtor appears or not, the court has to satisfy itself, before issuing any warrant of arrest against the judgment debtor, whether the materials on the record bring the case within any of the clauses of the proviso to Section 51 of the Code." Proviso to Section 60 of the Code, however, shows that it is for the judgment debtor to place materials before the court to bring his case within the relevant clauses. The distinction between the two therefore, is obvious. In this connection, Section 3 of the Limitation Act may be seen. This section lays down that, subject to the provisions contained in Sections 4 to 25, every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Here too the Legislature has given a mandate to the court to dismiss suits, appeals or applications filed after the prescribed period of limitation even though the other party does not take up the plea of limitation. It is by now well settled that the court must dismiss a suit as barred by limitation even though the defendant does not raise such a plea or press the same. In view of the foregoing discussions, we are unable to agree with the learned Additional District Judge and hold that the judgment-debtor could not waive the privilege conferred on him by Section 51 of the Code of Civil Procedure.

(6) In the result, the appeal is allowed and the orders of the courts below are set aside. In the circumstances of the case, the parties will bear their own costs through out.