A judgment-debtor can be arrested under Section 51 of the Civil Procedure Code if the decree-holder can show that the judgment-debtor has the means to pay the decree money but has neglected to do so.

Narayan, J.

1. This appeal arises out of an execution proceeding. The respondent obtained a decree for Rs. 5000 against the appellant on 11-1-1943, this amount having been claimed by the respondent as her dower. On appeal to this Court the decree was varied and Rs. 10,000 was allowed as dower to this respondent. The decree was put under execution and the judgment-debtor appeared in the execution case on 2-11-1943 and made a prayer to the effect that execution be stayed till the disposal of the appeal which he had preferred to the High Court. He was allowed time till 12-1-1944 and meanwhile an order was received from the High Court according to which the judgment-debtor was allowed to deposit the decretal amount in four equal instalments. This Court permitted the judgment-debtor to pay the decree money in instalments of Rs. 1250 each. There was, however, default by the judgment-debtor and because of the default the decree-holder applied for issue of notice under Order 21, Rule 37, Civil P.C. against him. The judgment-debtor then objected but his objection was overruled and order for issue of warrant of arrest was passed. On 7-9-1944, the judgment-debtor prayed for recalling the order for the issue of warrant of arrest and after this petition had been heard the judgment-debtor was held to be in possession of properties yielding an income of about Rs. 400 per year. There was again an order by the Court permitting the judgment-debtor to pay the decree money in instalments and the judgment-debtor went on making payments till 19-1-1946. In the meantime his appeal before this Court was dismissed. Again for the third time by an order dated 2-7-1946 the judgment-debtor was allowed to pay the decree money in instalments and he made some payments but ultimately the order dated 2-7-1946 was set aside by the High Court. The decree-holder therefore again proceeded with the execution and the judgment-debtor filed an objection contending that he was not liable to be arrested. The judgment-debtor relied on Section 51, Civil P.C., as it stands after the amendment made in 1936. There is a proviso added to this section which says 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) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree is likely to abscond or leave the local limits of the jurisdiction of the Court, or has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property or committed any other act of bad faith in relation to his property; or (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) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. The objection of the judgment-debtor was heard and the learned Subordinate Judge was of the opinion that Sub-clause (b) of the proviso is applicable to this case inasmuch as the judgment-debtor, though he had the means to pay the decree, has neglected to pay it. The learned Subordinate Judge has pointed out that the execution has been pending for the last five years and that though there was a decree for Rs. 10,000 as dower and for Rs. 1400 as costs against this judgment-debtor he has up till now paid a sum of Rs. 3600 only towards the decree. Mr. Sanyal on behalf of the appellant has stressed the fact that the judgment-debtor has made payments from time to time and he argues that this is a circumstance which indicates that he has not refused or neglected to pay the decree money.

2. The main question therefore is w