The court must follow the procedure prescribed under Order 21, Rule 40, C.P.C. before passing an order of arrest against a judgment-debtor.

The Order of the Court was as follows :

This revision is by the judgment-debtor/1st respondent in R.E.P. No. 25 of 1991 on the file of Subordinate Judge, Krishnagiri. The execution petition is for arrest of the petitioner with a view to realise the money decree obtained against him by the decree-holder-respondent herein. In the execution petition, initially notice was ordered to the judgment-debtor and he appeared before the Court and filed his counter. Then the execution Court passed an order of arrest inter alia stating,

"Means has been proved by affidavit. Hence the objection being untenable arrest the respondent by 31-12-1991".

2. The learned Counsel for the petitioner submits that this Court has repeatedly held that after the judgment-debtor appeared in court pursuant to the notice of arrest, the procedure prescribed under Order 21, R. 40, C.P.C. has to be followed. In other words, in such a situation 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.

3. But in the present case, admittedly no such procedure has been followed. The decree-holder has not let in any evidence. Nor the judgment-debtor has let in any evidence. When an enquiry is held pursuant to O. 21, Rule 40, C.P.C. the Court has to see at that stage whether the judgment-debtor could be detained in civil prison for any of the three reasons mentioned in the proviso to S. 51, C.P.C. One of these reasons mentioned in Cl-(o) to the said proviso is 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. No doubt, in the impugned order, the learned Judge has observed, "Means had been proved by affidavit". In this connection, the learned Counsel for the respondent-decree-holder drew my attention to the following passage in the counter-affidavit against the execution portion -

"Anyhow this respondent is not able to raise funds, though he has got properties which cannot be sold or mortgaged immediately. Hence he cannot he arrested in the execution of the decree."

4. The learned Counsel for the respondent submits that the abovesaid averment itself is an admission on the part of the judgment-debtor that though he has got properties, he could not pay the decree amount since he was not able to raise funds therefrom. Further, the learned Counsel also points out that the said affidavit was dated 13-8-1991 and the impugned order was passed only 28-11-1991 and in between, the execution petition was adjourned more than once. The learned Counsel submits that this would show that, despite the fact that the judgment-debtor had means to pay, he had neglected to pay the decree amount as found in the above proviso to Section 51, C.P.C.

5. On the other hand, the learned Counsel for the petitioner drew my attention to a decision in Ganesa Nadar v. K. Chellatha Ammal, (1987) 100 Law Weekly 431, wherein it has been held, while interpreting the abovesaid Cl. (b) of the proviso to Section 51, C.P.C. that the refusa or neglect spoken to therein envisages the capacity to pay but deliberate non-payment I also find that unless there is deliberate nonpayment, despite the possession of properties, no arrest order could be made. From the abovesaid passage in the counter-affidavit of the judgment-debtor or from the fact that no payment was made even during the time-gap between the date of the said counter and the date of the impugned order, it cannot be positively concluded that there was any such deliberate non-payment by the judgment-debtor. That apart, the Court below has not given any such finding regarding the neglect or refusal spoken to in Sec. 51, proviso (b), C.P.C. Further Order 21, Rule 40, C.P.C. requires