The decree-holder has the burden of proving that the judgment-debtor has the means to pay the decretal amount and has refused or neglected to pay it before the court can order the arrest and detention of the judgment-debtor.

The unsustainable order passed by the learned principal District Munsif, Srivaikuntam, in Execution petition No.29 of 1990 in O.S.No.24 of 1985 is being canvassed in this revision by the revision petitioners, who are the respondents and defendants 2 and 3 before the court below for its want of legality, propriety and correctness.

2. The petitioners herein are the defendants 2 and 3 along with first defendant, who is not a party in the proceedings were sued by the respondent herein for the recovery of sum of Rs.4,240/- with interest at the rate of 12 per per cent annum from 15.12.84 onwards based on a promissory note executed by them in favour of the respondent and the trial court, after the trial, has granted a decree in favour of the respondent herein in O.S.No.24 of 1985 on 18.7.91. As the first defendant happened to be a police personnel working outside the jurisdiction of the executing court, who was the principal debtor and both the revision petitioners being the defendants 2 and 3 happened to be the guarantors for the suit loan and pursuant to the decree passed above-referred execution was levied by the respondent herein before the executing court in E.P.No.29 of 1990 in O.S.No.24 of 1985 on the ground that the first petitioner herein is having both movable and immovable properties and earning adequate income and that the 2nd petitioner also was running a photo studio and having considerable income but failed to pay the decretal amount to the respondent herein. The execution was levied under Order 21 Rule 36 Civil Procedure Code praying for the arrest of the defendants 2 and 3, who are the revision petitioners herein. Both the revision petitioners resisted the execution petition by filing separate counters inter alia contending that they had no means at all at the time of execution to pay the decretal amount, that they were no-where employed to pay the amount and that, therefore, the execution levied against them cannot be sustained. The learned executing Judge, while considering the oral evidence adduced on behalf of the respective parties, but however, with no documentary evidence if I may say so briefly has held that the judgment-debtors Nos.2 and 3 who are the revision petitioners herein, are bound to prove that they had no means to pay the decree amount wrongly and erroneously and placed the onus on them. On this ground alone, the impugned order under this revision is liable to be set aside.

3. For the purpose of appreciating the entire order passed by the learned executing judge, I have to extract section 51 of the code of Civil Procedure, which runs as hereunder;-

“51 Power of Courts to enforce execution;- subject to such condition 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 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.-

(b) 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 this property, or committed any other act of bad faith in relation to his property, or,

(b) that the judgment-debtors has, or has had since the date of the