The court clarified the distinction between the arrest of a judgment-debtor under Order 21 Rule 37 C. P. C. and the detention of a judgment-debtor in civil prison, emphasizing that an enquiry under Section 51 C. P. C. is required only before committing the judgment-debtor to prison, not for the initial arrest.

( 1 ) THIS is a revision against the order of the Munsif Magistrate, Rayachoti, dated 14-6-1978 in E. P. No, 39 of 1977 rejecting the contention raised by the judgment-debtor that he is a small farmer and arresting him under Or. 21 rule 37 C. P. C. is illegal.

( 2 ) SRI K. Parvathisam, the learned counsel for the petitioner, contended that even if the petitioner is not a small farmer and the extent of the land held by him is more than what is required to be under Act 7 of 1977, the lower Court erred in directing the arrest of the petitioner without complying with the provisions of Sec, 51 C. P. C. The learned counsel for the petitioner pointed out that this is mandatory on the part of the lower Court. He further contended that the Court below should have given a finding that the judgmen .-debtor is possessed of sufficient means to pay the amount of the decree or some substantial part thereof, but refused or neglected to pay the same. In the absence of such a finding, the order of arrest is illegal.

( 3 ) MR. M. N. Narasimhareddy, learned counsel for the respondent- decree-holder, on the other hand contended that the petitioner-judgment- debtor filed a petition on the ground that be is a small farmer and therefore the Court should discharge him from the liability of the decree debt and dismiss the E P as the same gets abated unde Sec. 4 of Act 7 of 1977. According to the learned counsel, the responden -decree-holder also being a small farmer, the debt in question is not a debt exempted under Act 7 of 1977 and the question whether the. petititioner-judgment-debtor is a small farmer or not is not relevant for the purpose of this petition.

( 4 ) THE lower Court confined its enquiry to find out whether the judgment-debtor is a small farmer or not and found that he is not a small farmer as the land in bis possession is Ac. 5-76 cents. E. P. No. 39 of 1977 was filed by the decree-holder within two years after the passing of the decree for the arrest of the judgment-debtor under Or. 21 Rule 37 (2), as the judgment- debtor failed to pay the decree amount. Therefore, when the lower Court found that the judgment-debtor is not a small farmer, it was justified in ordering the arrest of the judgment-debtor.

( 5 ) TO appreciate the contentions aised by the learned counsel on both sides, it is necessary to note the provisions of Sec. 51 and Or. 29 rule 37 CPC. The relevant portion of Sec. 51 CPC is as under:"51. Powers of Court to Enforce Execution. (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 exceeding the period specified in sec ion 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 deten ion 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 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 ). . . . . . . . . Or. 21 Rule 37 reads as follows:"37. Discretionary Power to Permit Judgment Debtor to show Cause Against Detention in Prison: (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the 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 before the Court on a day to be specified in the noti