T. Kunhiraman vs Pootheri Illath Madhavan Nair

Panchapakesa Ayyar, J.—This is a petition by one T. Kunhi. Raman, the judgment-debtor in E. P. No. 31 of 1954 and a pensioned Deputy

Nazir, to revise and set aside the order of the District Munsif of Kuthuparamba, North Malabar, directing his arrest by 16th July 1955 ex parte in

respect of a decree for a sum of Rs. 160 in favour of the Petitioner in the E. P. (respondent here). I have perused the entire records and heard Mr.

Achuthan Nambiar the learned counsel for the petitioner and Mr. N. R. Sesha Aiyar learned counsel for the decree-holder respondent

Mr. Sesha Aiyar raised a preliminary objection that a civil revision petition would not lie to this court, and only an appeal would lie to the District

Court, North Malabar, in view of the observations of a Bench of this court in Ponnappa Reddi and Others Vs. Thiruvengada Pillai and Co. and

Others, . Mr, Achuthan Nambiar strenuously disputes this, and says that the observations in that Bench judgment will not apply to an order for

arrest contravening the mandatory provisions of Section 51 of the Civil Procedure Code. I agree with him. The observations in question are found

at p. 108 (of Mad LJ): (at p. 1181 of AIR), and run as follows:

It is welt-settled that when a small cause decree of the Sub Court or of a District Munsif''s court is transferred to the original side of the sub-court

or the Munsif''s court for execution against the Immovable property of the judgment debtor, there is a right of appeal u/s 47 C. P. C., and the rules

applicable to the proceedings in execution of the original decree are applicable to the execution proceedings of the small cause decree transferred

to the original side of a court.

But, here, the prayer in the execution petition granted by the lower court was not for execution against the Immovable property of the judgment

debtor but for the arrest of the judgment debtor, and the observations quoted above will have no application whatever.

The arrest of a citizen of the Indian Republic is a grave matter involving his fundamental rights. Section 51 C. P. C., has clearly stated, among

other things, that a judgment-debtor should not be ordered to be arrested unless the court holds that he has had, since the decree, the means to

pay the amount of the decree or some substantial part thereof and refuses or neglects to pay the same. This court has held that the mandatory

provisions of Section 51 C. P. C., must be complied with before arrest is ordered. The lower court does not say that in its opinion the judgment-

debtor has had, since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and has refused or

neglected to pay the same.

The order of arrest is therefore illegal and has to be set aside. It is phenomenally brief and runs: ""Respondent called. Absent. Vakil reports no

instructions. Arrest by 16-7-1955."" No reason whatever is given as to why arrest is ordered, and the mandatory provisions of Section 51 C. P.

C., have been ignored. Mr. Sesha Aiyar says that as the petitioner was ex parte, reasons need not be given. I am afraid I cannot agree. Under our

law ex parte orders of arrest and orders of arrest after contest are exactly on the same footing, and Section 51 C. P. C., makes no difference

whatever between the two cases. Arrest after contest or ex parts involves the same painful consequences to the man arrested.

In this view, I allow the civil revision petition, though without costs, and set aside the order of arrest and remand E. P. No. 31 of 1954 in S. C.

No. 185 of 1952 on the file of the District Munsif''s court, Kozhikode, to the court of the Subordinate Judge, Tellicherry (to which it has been

transferred) for disposal after a fresh notice to the petitioner and after observing the mandatory provisions of Section 51 C. P. C., and all other

provisions of law.