R. V. VASANTHA KUMAR, J.

( 1 ) BOTH the Counsel appearing for the parties consent that the matter be heard on merits and hence the C. R. P. is heard on merits,

( 2 ) THE main ground in the revision petition is in spite of the objections takenregarding judgment-Debtor having no means to pay the decretal amount the trial court has observed that the Court can order the arrest of the judgment-Debtor without any enquiry as to Ihe means and without recording any reason in writing, but after the debtor is brought under arrest the inquiry as to means must be held. The argument of the learned counsel is that no order for arrest can be made without first recording a finding on the question of means of Judgment-debtor.

( 3 ) NOW, in this case, it has to be made very clear that the Judgment-debtor atevery stage of the execution proceedings is trying to object the exccutability of Ihe decree. Certain few facts are necessary to appreciate the stand laken by the judgment-debtor.

( 4 ) THE Judgment-debtor has suffered a decree in S. C. 2830/1986 and the natureof the decree is for arrears of rent. It is to be seen that in spite of the fact that he suffered a decree, the Judgment-debtor has not paid the decretal amount as directed. Bui, he has been taking all sorts of objections as to the executability of the decree on the ground that the same being nullity and also other defences. But, it is to be noted that the question of territorial jurisdiction raised by the Judgment-debtor has been negatived by the trial Court and as well as by this Court in C. R. P. No. 1770/1991. The only question that remains to be considered by the trial Court is regarding means. This Court, in a decision reported in Seth Shamsunder and Co. (decreeholders) v T, Mama (1st Judgment-debtor), 1958 Mys. Law Journal 364, has discussed the scope of Order 21, Rules 37 and 40, CPC. The only contention urged on behalf of the petitioners does not appear to be sustainable in law on a consideration of Rule 37 of Order 21, CPC. Rule 37 of Order 21, CPC, no doubt requires issue of notice calling upon the judgment-Debtor to appear before the Court on a day to be specified in the notice and to show cause why he should not be committed to civil prison. But, it docs not necessarily follow from the wording of Rule 37 of Order 21, cpc that in the event oc the Judgment-debtor failing to appear in response to the notice issued under Rule 37 or in the event of his failing to file objections even after appearance, he renders himself liable for being committed to civil prison without any further investigation. On the other hand, the provisions of Rule 40 of Order 21 clearly show lhat before the Judgment-debtor can be committed to civil prison a further procedure has got lo be followed by the lower Court. It is required under subrule (1) of rule 40 thai when the Judgment-debtor either appears before the Court in obedience to a notice issued by the Court under Rule 37 or is brought before the court after being arrested, lie Court should proceed to hear the decree-holder and to take such evidence as may be produced by him in support of his application for execution and then give an opportunity to the Judgment-debtor to show cause why he should not be committed to civil prison. It is, therefore, seen that under sub-rule (1) of Rule 40, the Court should proceed to hear tie decree-holder and lake such evidence as be may adduce and is required to give the Judgment-deb tor an opportunity to show cause why he should not be committed to civil prison. The obligation on the part of the Court to follow this procedure is in no way dependent on as to whether the Judgment-debtor has not shown cause in response to a notice issued under Rule 37. In Sirkar's commentaries, it is stated as follows:"when the Judgment-deb tor appears or when he is brought under arrest (although he did not appear to show cause after notice), the Court after compliance with the provisions of Section 55 (2), (3) will proceed to make an e

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