Judgment.-This appeal arises in the following circumstances. The appellant, Ayyasamy Gounder is the judgmentdebtor in O.S. No. 1835 of 1970 on the file of the District Munsif’s Court, Pollachi. On 30th March, 1970, Nachimuthu Gounder, the respondent herein, obtained a decree for Rs. 1,633-50 against the appellant. No payment was made towards the decree and on 14th September, 1971, the decree-holder filed E.P. No. 153 of 1971 under Order 21, rule n (2), Civil Procedure Code, praying for the arrest of the judgmentdebtor. Notice of this E. P. was ordered and the judgment-debtor was served. As he remained ex parte on 2nd November, 1971, arrest was ordered. Thereupon, the judgment-debtor engaged Counsel and filed a petition to set aside the ex parte order passed on 2nd November, 1971. This ex parte order was set aside and the judgment-debtor granted time to file his counter to E.P. No. 153 of 1971. He filed his counter, in which he contended that he had no means to pay the decretal amount and that he had in his possession only a small house in Sikkalampalayam village, which was under a mortgage for Rs. 1,000. The Court posted the matter for enquiry. The judgment-debtor examined himself as R.W. 1 during the enquiry and the decree-holder examined himself as P.W.1. After hearing arguments, the Court below passed an order on 20th January, 1972, allowing the petition of the decree-holder with costs and directing the judgmentdebtor to be arrested by 7th February,1971. The order contains a full discussion of the plea of the judgmentdebtor on the merits and a finding to the effect that though he’ had the means to pay the decretal amount, he was purposely evading payment thereof. Be it noted, that this finding was arrived at after following the procedure laid down in section 51, Civil Procedure Code. The judgment-debtor did not challenge this order. The order therefore became binding and final. What transpired after the date of the order now becomes relevant. The order was passed, as I have said, on 20th January, 1972, directing the arrest of the judgment-debtor by the 7th February, 1972. On 7th February, 1972, the E.P. was taken up and the following endorsement made under the initials of the District Munsif “J. D. not found; E.P. dismissed”. If the judgment-debtor was not found, it was due to no fault on the part of the decree-holder and the Court ought to have granted an opportunity to the decree-holder to pay batta again, so that a fresh warrant might issue for the arrest of the judgment-debtor. Evidently, the Court was in a hurry to close the E. P. purely for statistical purposes and without any regard for the interests of the decree-holder, who was anxious to pay batta and get the order of arrest passed on 20th January, 1972, executed. In fact, on 8th February, 1972, the decreeholder, who came to know about the dismissal of the E.P. filed a fresh petition (E.P. No. 34 of 1972) praying for the arrest of the judgment-debtor. In pursuance of this E. P. notice of arrest was again issued to the judgment-debtor, who appeared by Counsel on 6th March,1972, and after getting repeated adjournments for filing a counter, ultimately filed a counter on 12th April, 1972, repeating the same objections as he had raised in his counter to E.P. No. 153 of 1971. The Court below again adjourned the matter for enquiry. An enquiry was held on 25th July, 1972 and neither party would appear to have offered any evidence on that day. The learned District Munsif therefore heard, the arguments of both the parties and reserved orders on 25th July, 1972. On 29th July, 1972, he passed a speaking order in which he held that the judgment-debtor had the means to pay the decretal amount, and he consequently directed the arrest of the judgment-debtor: by l0th August, 1972. In coming to this conclusion, the learned District Munsif was influenced by two considerations, viz.: (1) that the judgmentdebtor had put forth the same contentions as as he did in E.P. No. 153 of 1971 a

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