Point of Law: Mandate of issuance of notice and doctrine of 'no means' and 'lack of bonafides' though relevant in determination of issue under Rule 37 of Order XXI C.P.C. r/w proviso attached to Section 51 C.P.C., may not have any application with respect to a property which is available for attachment and sale, which would otherwise fall under clause (b) of Section 51 C.P.C.

JUDGMENT :

The execution court instead of proceeding against the property, which is under attachment, initiated coercive steps against the judgment-debtor by issuing warrant of arrest under Rule 38 of Order XXI C.P.C.. Consequently, the judgment-debtor was arrested and produced before the court and subsequently released on bond due to non-payment of subsistence allowance. The principal question came up for consideration is, whether it is permissible to take coercive steps under Rule 37 and 38 of Order XXI C.P.C. by issuing warrant of arrest against the judgment-debtor for his detention in civil prison, when his property is under attachment either at the trial stage or at the execution stage ? Can the court issue warrant of arrest at the execution stage to procure the presence of judgment-debtor in execution and under what circumstances such coercive steps can be initiated ?

2. At the execution of money decree, a warrant of arrest can be issued under Rule 38 of Order XXI C.P.C. only when it is found that it is not possible to recover the decree amount or any part thereof by resorting to other methods of execution under Order XXI C.P.C.. The measures/methods of execution which can be adopted in execution of a decree should always be in accordance with the mandate under Section 51 C.P.C. which was carefully worded and drafted by giving first option for sale of movable or immovable property and second option probably, the last option in a money decree by arrest and detention, which reads as follows:

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) by delivery of any property specifically decreed ;

(b) by attachment and sale or by sale without attachment of any property ;

(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) by appointing a receiver ; or

(e) in such other manner as the nature of the relief granted may require :

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 fiduciary capacity to account.

Explanation: In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.” (emphasis supplied)

3. The entire scheme of Section 51 C.P.C. clearly postulates the procedure to be taken one after another in execution of a decree. The clause (b) to Section 51 C.P.C. specifies the procedure to be applied in execution of a decree for payment of money by the sale of property either with attachment or without attachment. The subsequent provision, clause (c) deals with yet another method of execution by arrest and detention of judgment- debtor. It was included as a succeeding provision just after the normal method of execution of a money decre