A surety, who is a party to a tripartite agreement for advance of money by the creditor to the principal debtor, has no fiduciary capacity with liability to account. Therefore the decree does not fall within the mischief of clause (c) of the proviso to S.51.

Bhat, J.

Central Bank of India is the respondent in C.R.P.No.166 of 1989. Syndicate Bank is the respondent in C.R.P.No.815 of 1990. Corporation Bank is the first respondent in C.R.P. No. 1378 of 1989. The Banks filed suits for recovery of amounts advanced to certain debtors as well as against sureties for the loans and obtained decrees. Revision petitioners are such sureties. Executions were levied in enforcement of the decrees by arrest and detention in civil prison of sureties. Sureties raised plea of no means under clause (b) of the proviso to S.51 C.P.C. The executing courts passed orders holding that sureties cannot raise the plea since the decrees are for sums of money for which the judgment-debtors were bound in fiduciary capacity to account as contemplated in clause (c) of the proviso to S.51 C.P.C. and ordered arrest by separate orders. This view is supported by the decision of a learned single judge of this court in Velayudhan v. State Bank of India (1988 (1) KLT 491). The revision petitioners challenge these orders.

2. Kalliath, J. who heard CRP No. 166/89 doubted the correctness of the decision in Velayudhan's case (1988 (1) KLT491) and adjourned the matter to be heard by a Division Bench. This revision petition has thus come up before us along with CR.P.NOS.1378 of 1989 and 815 of 1990.

3. S.51 of the Code of Civil Procedure deals with powers of court to enforce execution. Civil court is empowered to order execution of decree by delivery of the property specifically decreed, by attachment and sale or by sale without attachment of any property, by arrest and detention in prison for such period not exceeding the period specified in S.58, where arrest and detention is permissible under that section, by appointing a receiver or in such other manner as the nature of the relief granted may require. The proviso to S.51 deals exclusively with decrees for payment of money. The proviso states that in the case of a decree for 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 regarding the existence of conditions specified in clause (a), or clause (b) or clause (c). The condition stipulated in clause (a) is that the judgement-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 transfer red, concealed, or removed any part of his property, or committed any other act of bad in relation to his property. The condition stipulated in clause (b) is 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. The condition stipulated in clause (c) is that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. Rules regarding arrest and detention are further elaborated in Ss.55 to 59 and Rules 37 to 40 of Order XXI. Clause (3) of Rule 40 makes the order to be passed by the executing court subject to the provisions of S.51 and other provisions of the Code.

4. The executing court has taken the view that the decrees are for sums for which the judgment-debtors were bound in a fiduciary capacity to account within the meaning of clause (c) of the proviso to S.51 and therefore the bar against detention in prison contemplated in the proviso will not apply. At the outset Sri. R. Bhaskaran, learned counsel for the revision petitioner in C.R.P. 1378/89 stated that even if clause (c) of the proviso is attracted, unless the conditions stipulated in clause (b) of the proviso are satisfied, arrest and detention couldn't be ordered. Clause (c) of S.51 empowe