The court emphasized the importance of protecting the liberty and freedom of judgment-debtors and the need for a proper inquiry to determine their means to pay before ordering their arrest and detention.

ORDER :

1. The order of the learned District Munsif (Sri P. Laxminarayana), Nuzvid in E.P. No. 12/91 (O.S. No. 244/89) dated 16-6-1994 is challenged in this revision petition. The petitioner is the Judgment-debtor in E.P. 12/91 and respondent is the Decree-holder. The decree-holder was executing the decree obtained by him as against the petitioner. The respondent sought the assistance of the Court to arrest and detain the petitioner in civil prison till he paid the decretal amount. The petitioner resisted the execution petition pleading that he had no income and that he was unable to maintain himself and his family members with the meagre income he was getting. He also undertook to clear off the decretal amount in two years. The learned Munsif after hearing both the sides and on the basis of the material available before him came to the conclusion that there was no merit in the resistence of the petitioner and ordered issue of arrest warrant to keep him in civil prison.

2. The learned Advocate for the petitioner has contended that the impugned order passed by the learned Munsif is illegal and unenforceable.

3. He has pointed out Section 51(b) of C.P.C. in support of his contention that when the petitioner as a judgment-debtor raised a plea that he had no means to pay or that he had no capacity to pay, the Court was bound to hold an enquiry and give a finding that the conditions laid down in proviso to Section 51 of C.P.C. had been fufilled to direct the arrest of the petitioner and in the absence to do so, the result is that the order is vitiated. The learned Advocate for the respondent has contended that in effect and in spirit, the learned Munsif has complied with the legal implications stated above, since the petitioner is admittedly, a lecturer having means to pay and since the petitioner undertook to clear the dues under the decree and therefore, there is no infirmity either legal or otherwise, in the impugned order.

4. On a careful examination of the legal implications of Section 51(b) and order 21 Rules 37 and 40 of C.P.C. this Court is not convinced that the impugned order passed by the learned Munsif can be supported. It is passed in utter ignorance i.e., in contempt of settled law and precedents of the Supreme Court in Jolly George Varghese v. The Bank of Cochin1, our own High Court in Suravarapu Putrayya v. Maddukuri Veerraju2, R.V.J. Sastry v. Bank of India3, Sikile Moses v. Koturi Seeta Ram Das4, Kerala High Court in Kesava Pillai v. Ouseph Joseph5 and K.B. Md. Ibrahim v. State Bank of Travancore, Trivendrum6 and authoritative commentaries of C.P.C. by AM Sake (pages 211 and 212) and Mulla (pages 1454 to 1461 Vol. 11 in XIV Edn.)

5. The gist of the law so settled may be succinctly and briefly noted: The relevant provisions in this regard are intended to protect the liberty and freedom of the judgment-debtor and therefore, the Code considers them to be of paramount importance. They are mandatory and violation of which invariably results in vitiating the consequential order. A show-cause-notice to me judgment-debtor as to why he should not be committed to civil prison under Order 21 Rules 37 and 51(sic. 40) of C.P.C. is mandatory. The Court is obliged to hold an inquiry and record a finding that the judgment-debtor has means to pay and has refused or neglected to pay the decretal amount, and such a finding should be supported by reasons. Such an inquiry should not be confined only to the stage of the date of decree, date of the execution petition or the date of the show-cause-notice or the inquiry. It should be at the relevant time when the Court gives a finding as above. The meaning and the scope of means to pay is to be found in Jolly George Varghees's case1 as follows:

“…. The words which hurt are ‘or has had since the date of the decree, the means to pay the amount of the decree’. This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resource