The privilege conferred by the proviso to Section 51 of the Code on the judgment debtor cannot be waived, as it is a matter of public policy to protect debtors who cannot pay their debts for reasons beyond their control.

1. This appeal is directed against an order of an additional District Judge of Muzaffarpur who dismissed an appeal preferred by the judgment-debtor against the order of the Subordinate Judge dismissing his application under Section 77 of the Civil Procedure Code. The respondent filed a suit against the appellant and other members of his family to recover a certain amount on the basis of a promissory note executed by the judgment debtor appellant. The suit was dismissed for default on 3-9-57. An application for restoration of the suit was filed by the plaintiff respondent under Order 9, Rule 9 of the Code of Civil Procedure. In pursuance of a compromise petition filed by the parties, a consent order was passed on 17-9-57 restoring the suit and decreeing the suit for Rs. 7586 and odd against two of the defendants, namely, defendants 3 and 4. Defendant No. 3 was the appellant and his son was defendant No. 4. The execution proceeding, out of which this appeal arises, was started by the respondent decree-holder against judgment debtor No. 1, that is, defendant No. 3 who is the appellant, only, with a prayer for realisation of the decretal dues by arrest and detention in the civil prison. After the service of notice under Order 21, rule 22 of the Code, the appellant filed the aforesaid application under Sec. 47 asserting that the decree-holders dues could not be realised from him by arrest and detention in civil prison as the conditions laid down in the proviso to Sec. 51 of the Code were not fulfilled. The decree-holder respondent examined himself in support of his contention that the appellant did not pay the decretal dues in spite of the fact that he had means to pay the same since the passing of the decree, while the appellant examined himself in support of his application under Sec. 47 of the Code, the other two witnesses being formal. Both the courts below accepted the case of the decree-holder and consequently the application under Sec. 47 was dismissed.

2. Mr. Lal Narain Sinha, appearing on behalf of the judgment-debtor appellant drew our attention to Rules 37 and 40 of Order 21 read with Sec. 51 of the Civil Procedure Code. The object of these provisions is to afford protection to honest debtors who are incapable of paying their dues for reasons beyond their control and who have not committed any act of bad faith. The test is whether the debtor is unwilling to pay in spite of his means to pay. The circumstances which justify an order for arrest are contained in Sec. 51 of the Code, which provides for the different modes of execution of a decree and lays down 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 with the execution of the Decree. (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) 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".

Clause (c) does not apply to the instant case nor Sub-clause (i) of Clause (a). It is, therefore, to be seen whether the judgment-debtor, with the object of obstructing or delaying execution of the decree has, since the passing of the decree, dishonestly transferred, concealed or removed any part of the property or committed any act of bad faith,