C.R.

Basant, J.

1. Is the plea of no means available to a husband against proposed arrest and detention under Section 51 of the Code of Civil Procedure in execution of a decree for money passed by the Family Court in favour of his wife for return of parental share and gold ornaments entrusted to him? Can proviso (c) to Section 51 C.P.C. be said to be attracted ? These, in short, are the questions raised in this appeal.

2. To the vitally relevant facts first. The appellant and the respondent were married on 19/5/1996. They lived together for some period of time. Separate residence commenced from 14/9/2002. The husband allegedly did not return to his wife cash, ornaments, articles etc. of value Rs.3,25,500/-. The wife claimed return of the said amount of Rs.3,25,500/- along with the interest and costs.

3. The husband was set ex parte once. The said ex parte order was set aside. Though the husband was permitted to participate in the proceedings, he again did not cooperate and take part in the proceedings. Accordingly, the Family Court proceeded to pass the decree directing him to pay the said amount of Rs.3,25,500/- along with interest and costs.

4. The respondent/wife took out execution before the Family Court. The husband was once directed to be arrested. He was arrested. While he was in custody, he approached this Court and on condition that he deposits an amount of Rs.25,000/- and executes a bond with two solvent sureties for the balance amount, he was released from custody. Thereafter, before the execution court, the respondent-husband pressed the plea that he is without any means and that, in these circumstances, the money decree cannot be executed against him by arrest and detention. That plea was considered by the court below and by the impugned order, the court below came to the conclusion that the respondent/judgment debtor has no means and consequently, he is not liable to be arrested and detained in execution of the money decree. It is that order, that is impugned in this appeal by the decree holder/wife.

5. We may straight away refer to the contention that the sureties who had executed the bond as per the earlier order passed by this Court are also liable to be proceeded against. In the execution petition or in this appeal they are not parties. Our attempt to trace the bond, if any, executed by them has not succeeded. We are, in these circumstances, satisfied that it is not necessary for us to come to any authentic finding in this Mat Appeal about the liability of the sureties to be proceeded against. If execution is taken out against them on the strength of the bond allegedly executed by them, the Family Court will have to consider the claim for execution against them in the light of all contentions which may be raised before the Family Court. We are not, in these circumstances, embarking on a consideration of that aspect of the matter in this appeal.

6. The learned counsel for the appellant/decree-holder in this appeal before us raises only one contention. Sri Varghese C.Kuriakose,counsel for the appellant, raises the short contention that in view of Proviso (c) to Section 51 of the Code of Civil Procedure, the decree holder/husband is not entitled to raise a plea that the decree is not liable to be executed against him by arrest and detention for the reason that he is without means.

7. That is the short question arising for consideration.

8. It will be apposite straight away to refer to Section 51 of the Code of Civil procedure. We extract the same below:

"Section 51. Powers of court to enforce execution,-Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-

(a)xx xx xx xx (b)xx xx xx xx (c)by arrest and detention in prison [for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that section] (d)xx xx xx xx (e)xx xx xx xx

Provided that, where the dec