The court must strictly comply with the mandatory provisions of Section 51 of the C.P.C. and Order XXI, Rule 37 of the C.P.C. before ordering the arrest and detention of a judgment debtor for non-payment of a money decree.

( 1 ) THIS appeal by the Judgment-debtor is directed against the order and decree passed in E. P No. 15 of 1975 on the file of the principal Subordinate Judge, Visakhapatnam dt. 12-7-1976.

( 2 ) BANK of India, Visakhapatnam, represented by its duly constituted attorney, the first respondent herein filed an execution petition seeking the execution of a money decree against the appellant requesting the court below to arrest the appellant and send him to civil prison after notice for realisation of the E. P. amount in a sum of rs. 21, 291-68 Ps. That petition was ordered which is now appealed against. That order reads thus:"balance not paid. Adjournment petition dismissed. Judgment -debtor have means to pay as per affidavit. Arrest judgment-debtors 1, 2 and 4 by 3-8-1976",

( 3 ) THE learned counsel for the appellant contended that the above decision of the court below directing the arrest of the judgment debtors is not in conformity with the mandatory provisions of procedural law whereas the learned counsel for the respondents contended that the decision was quite legal, proper and valid.

( 4 ) THE point therefore that arises for consideration is whether the order directing the arrest of the judgment-debtors in execution of the money decree merely on the ground that they have means to pay the decretal amount, is valid in law.

( 5 ) A consideration of the above needs reference to the applicable provisions of law contained in Sec. 51 of the Code of Civil procedure and the provisions in Order XX! particularly Rule 37 there- of.

( 6 ) SECTION 51 of the Code of Civil Procedure deals with the powers of the court to enforce execution of a decree by arrest and detention and reads, in so far as it is material, thus:"subject to such conditions and limitations as may be prescribed the court may, on the application of the decree- holder, order execution of the decree- (a) xx xx xx (b) xx xx xx (c) by arrest and detention in prison for such period not exceeding the period specified in Sec. 58, where arrest and detention is permissible under that Section; (d) xx xx xx (e) xx xx xx provided 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) xx xx xx (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".

( 7 ) THE expression "prescribed" occurring in the above Section is defined by sub-section (16) of Sec. 2 C. P. C. to means prescribed by rules .

( 8 ) RULE 37, of Order XXI is one such prescribed rule and in so fas as it is material, omitting the proviso, reads thus: (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by arrest and detention in the civil prison of a judgment debtor who is liable to be arrested in pursuance of the application, the court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear befora the court on a day to be specified in the notice and show cause why he should not be committed to the civil prison; (2) Where appearance is not made in obedience to the notice the court shall, if the decree-holder so requires, issue b warrant for the arrest of the judgment debtor.

( 9 ) WHAT is therefore manifest from the foregoing provisions of law is- (1) The court has power conferred upon it under section 51 of the Code to order the execution of a decree for the payment of money by arrest and detention of the judgment-debtor in prison on the application of a decree-holder; (2) The condition precedent for the exercise of that power is that it should be preceded by the court s affording an opportunity to the judgment-deb