Soundararajan vs Sayee Finance and Another

G. Maheswaran, J.—This revision is directed against the order of the learned District Munsif of Erode, ordering arrest of the judgment-

debtor revision petitioner.

In execution of the decree in O.S.No. 172 of 1981, the respondent-decree-holder filed an execution petition for arrest of the revision petitioner

herein. The learned District Munsif passed the following laconic order:

No counter filed, Respondent called absent and set ex parte. Means proved. Arrest by 17th March, 1984.

One of the contentions taken by the learned Counsel for the revision petitioner is that the learned District Munsif has not followed the rules

prescribed under Order 21, Rule 40, Civil Procedure Code. He invited my attention to the proviso to Section 51(b), CPC and stated that the

Court has to see whether the judgment-debtor has or had since the date of decree the means to pay the amount of decree or some substantial part

thereof and refused, and having not stated so, the order passed by the learned District Munsif is not sustainable. This contention of the learned

Counsel is wrong. A perusal of Section 51 shows that there are two stages in the process of execution of a decree so far as Section 51(c) is

concerned. These are (1) arrest, and (2) detention in civil prison. A careful reading of the proviso would show that it refers only to execution by

detention in prison and that the court must be satisfied with the conditions enumerated therein only when an order for detention in civil prison is

made by the Court. The inhibition contained in Section 51 is not applicable while ordering arrest of the judgment-debtor.

The learned Counsel for the petitioner Mr. Gnanadesikan, concedes that there is no need to state the reasons while ordering arrest, but such

reasons are necessary only for ordering the subsequent detention. He pointed out that the learned District Munsif has stated ''means proved'' which

will show that he has come to the conclusion that the judgment-debtor is having means to pay the decree amount or substantial part thereof. It is

true that the District Munsif need not have stated ''means proved'', but the fact that he has stated so would not make the order of arrest less valid.

Sub-rules (1) and (2) of Rule 40 of Order 21, Civil Procedure Code, provide for the arrest and custody of the judgment-debtor. But Sub-rule (3)

of Rule 40 deals with the detention of the judgment-debtor in civil prison. It is only when an order under Sub-rule (3) of Rule 40 has to be made, it

will have to be made subject to the provisions of Section 51, Civil Procedure Code. There is no need to comply with the requirement of Section

51 while acting under Sub-rules (1) and (2) of Rule 40 or under Rule 37. In this case, the judgment-debtor was absent and did not file any

counter. The mandatory provisions of Section 51 have to be satisfied only when ordering the detention of the judgment-debtor in civil prison, and

not at the earlier stage. If authority is needed for that proposition, it has to be found in the ruling of a Division Bench of this Court in P.G.

Ranganatha Padayachi Vs. The Mayavaram Financial Corporation Ltd., . The Court passed the order for arrest as the judgment-debtor was

absent on the date when the petition was posted for hearing. The order is perfectly correct and calls for no interference. The revision is dismissed,

but without costs.