The burden of proof lies on the decree-holder to establish the conditions for arrest and detention of the judgment-debtor, and the court must consider the nature of the decree and the circumstances of refusal or neglect before ordering arrest and detention.

1. The appellant in this case is the judgment-debtor in O. S. No. 48 of 1971 of the Munsiff's Court, Shertallai. In execution of the above decree notice was issued to the appellant under Order XXI R.37 to show cause why he should not be arrested and detained in prison for non-payment of the decree debt. The appellant appeared before court and filed objections, one of the objections being that he had no means to pay. However on a subsequent date to which the case stood posted, he paid Rs. 100/-. Some more amounts were also paid on the adjourned dates. The case stood posted to 28 91972 for payment of the balance amount. No amount was paid on that day and therefore warrant was issued.

2. The appellant then filed a petition for permitting him to pay the decree debt in instalments. That petition was dismissed. The order of dismissal was confirmed in appeal and second appeal. In the meanwhile a fresh petition for execution was filed. It was taken up after the disposal of the second appeal. On 23 111974 the court after hearing the parties passed the following order: "Heard. Issue warrant. Report 311975" Against the above order an appeal was filed before the District Judge, Alleppey. The main contention put forward was that the appellant had no means to pay. The appellate court held that since the appellant had given up the plea of no means and offered to pay the decree debt in instalments he was precluded from putting forward that plea again, and on that ground dismissed the appeal. It is against the above order that the present appeal is filed

3. Assuming that the judgment-debtor did not press the objection regarding means the further question is whether that alone would entitle the decree-holder to demand arrest and detention of the appellant.

4. The relevant provision dealing with arrest and detention of the judgment-debtor in execution of decree is contained in S.51 of the Civil Procedure Code. The proviso to that section reads:

"Provided 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,

(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."

5. Order XXI R.40 dealing with arrest and detention of the judgment-debtor reads:

"40. Proceedings on appearance of judgment-debtor in obedience to notice or after arrest. (1) When a judgment-debtor appears before the Court in obedience to a notice issued under R.37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison."

6. Decisions uniformly lay down that the burden of proving that the conditions mentioned in S.51 exist is on the decree-holder. The decision in Harpal Singh v. Hira Lal (A. I. R.1955 Allahabad 402) is one of the cases which interprets the above provision. The conclusions are laid down in the following passage:

"Before the court can issue a warrant of arr