The court emphasized the validity of the transfer of execution proceedings, upheld the constitutionality of S.51 CPC, and highlighted the need for an enquiry by the court and the satisfaction of contumacious conduct before arrest under the proviso to S.51. The court also emphasized that the petitioner had sufficient means to pay the decree debt and did not qualify for exemption under S.60(1).

1. The 2nd judgment-debtor in O'.S.No. 57/72 of the Subordinate Judge's Court of Cochin is the common revision petitioner. The suit was for money; and 40 cents of land with a residential building therein was attached before judgment. After judgment, the decree was transferred to the Ernakulam Sub Court for execution. When notice under 0.21 R.37 was issued, the petitioner entered appearance and filed objections. The proceedings were thereafter adjourned from time to time to enable the judgment debtors to effect payment. On 1st November, 1977 the petitioner did not appear. The decree holder filed an affidavit to prove means and arrest was ordered. Warrant for arrest was issued several times, but the petitioner remained elusive. By November, 1978 the Idikki Judicial District was formed and a District Court and Sub Court were established at Thodupuzha As the petitioner's place of residence fell within the jurisdiction of the newly formed Sub Court at Thodupuzha, the execution proceedings were transferred to that court under S.24 CPC. That court also ordered issue of warrant twice or thrice, but the petitioner was still not arrested. On 22-6-79 the court passed the following order.

"Warrant not seen issued. Issue warrant. For return of warrant, 23-7-79."

The petitioner challenged the above order before this court in CRP. No. 1741 of 1979. The revision was dismissed in limine, Viswanatha Iyer J. holding that the Thodupuzha court was only implementing the order of the Ernakulam court. The petitioner took up the matter in appeal before the Supreme Court (Civil Appeal No. 1991/79), and their Lordships remitted the matter to the executing court for fresh consideration of the question of means. It was also observed:

"The question may squarely arise some day as to whether the proviso to S.51 read with 0.21 R.37 is in excess of the constitutional mandate in Art.21, and bad is part."

2. The executing court at Thodupuzha was thus called upon to consider the questions of "means" again. The petitioner also filed a fresh petition under S.47 (E. A. 106/80), praying for dismissal of the execution petition on the ground that there was no valid transfer of the execution proceedings from Ernakulam to Thodupuzha The question of exempting the 40 cents of land and the building under proviso (c) to S.60(1) was also raised. The court allowed the parties to lead further evidence, heard them and over-ruled the objections by two separate orders. The present two revisions are directed against the said orders.

3. The objections raised before the court below are reiterated before this court also with an added challenge to the constitutionality of not only the proviso to S.51, but also the main provision The arguments have been elaborate, except as regards the constitutional question, and their excellence must remain unaffected by the conclusions reached herein.

4. The first point is about the transfer of the execution proceedings from the Ernakulam court to the Thodupuzha court. Under S.38 and 39 of the Code, a decree can be executed either by the court which passed it or by a court to which it is sent for execution by the former. The decree here was not passed by the Thodupuzha court, nor was it sent to that court under S.39. The only other provision is S.24 where under the High Court can, of its own motion and without notice to parties, withdraw any suit, appeal or other proceedings pending in any Subordinate Court and transfer the same for trial or disposal to any other Subordinate Court competent to try and dispose of the same. The argument is that what was transferred by the High Court in this case was only the suit and not the execution proceedings, and that in as much as S.24 speaks separately of suit and other proceedings, a transfer of the suit would not amount to transfer of the proceedings in execution. Thus there was no valid transfer of the execution proceedings so as to confer jurisdiction on the Thodupuzha court to execute the decree.

5. Th