The court held that the lower court's order was invalid because it had not complied with the mandatory requirements of Section 51 of the Code of Civil Procedure and Order XXI, Rule 37 of the Code of Civil Procedure.

( 1 ) THIS appeal by the judgment-debtor is directed against the order and decree passed in E. P. No. 15 of 1975 on the tile 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 mm to civil prison after nonce for realisation ot tne E. P. amount in a sum of Rs. 21, 291-63 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 contormity with the mandatory provisions of precedural law whereas the learned counsel tor 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 moneydecree merely on the ground that they have means to pay the decreta 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 XXI, panicularly Rule 37 thereof. Sec 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 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 ). . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . (c) by arrest and detention in prison for such period not exceed- ing the period specified in Sec. 58, where arrest and detention is permissible under that section. , (d ). . . . . . . . . . . . . . . . . . . . . . . . . . . (e ). . . . . . . . . . . . . . . . . . . . . . . . . . . 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 ). . . . . . . . . . . . . . . . . . . . . . . . . . . (b) that the judgment-debtor was, 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". The expression prescribed occurring in the above Section is defined by sub-section (16) of Section 2 C. P. C. to mean prescribed by rules . Rule 37 of Order XXI is one such prescribed rule and in so far 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 rrest 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 before the court on a day to be specified and show cause why he should not be committed to the civil prison; (2) Where appearance is not made in obediance to the notice, the court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor". 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 pr