Proper enquiry to be conducted for arrest of judgment-debtor.

ORDER :- The petitioner is one Anama Gounder, against whom the respondent had obtained a decree for money in the sum of Rs. 1618. The decree holder sought to levy execution against the judgement debtor by applying for his arrest and detention in civil prison. The judgement debtor resisted the execution proceedings on the score that he was a small farmer within the meaning of Act 31 of 1976, entitled to scaling down the debt.

2. The learned District Munsif, found on the evidence that the judgement debtor could not be regarded as a small farmer. Having disposed of the judgement debtor's objection to execution based on Act No.31 of 1976, the learned District Munsif then proceeded to give a disposal to the execution petition in the following manner-

"The respondent does not plead that he has no means to pay the decree amount...... The petition is posted to 25-7-1978 for the payment of the entire amount by the respondent. If the respondent fails to pay the decree amount by then, arrest will be ordered."

This order of the learned District Munsif has been brought before this Court in revision by the judgement debtor.

3. Mr. M.V. Krishnan, learned counsel for the petitioner, does not canvass the correctness of the finding that the judgement debtor is not a small farmer within the meaning of Act 31 of 1976. Learned counsel, however, strongly urges that the manner of disposal of the execution petition for arrest of the judgement debtor is irregular.

4. I agree with this contention. The learned District Munsif is, no doubt, correct in saying that the judgement debtor does not plead that he has no means to pay the decree amount. But this is purely a negative way of characterising the pleadings of the judgement debtor. For, nowhere in his counter-affidavit does the judgement debtor plead that he has means to pay. There is no admission in this sense. In any case, in a matter like this, where a debtor is sought to be arrested and put in civil prison for non-payment of a decree debt, the execution Court cannot rely for the support of its order entirely on the state of the pleadings of the judgement debtor. A reference to S.51 C.P.C. would show that it is the bounden duty of the execution Court to satisfy itself that the judgement debtor has, or has had since the date of the decree, the means to pay the amount of decree or some substantial part thereof, taut all the same refuses or neglects or has refused or neglected to pay the same, S.51 further insists that the Court's satisfaction must be entered for good reasons which are to be recorded in writing in the order. The provisions of S.51 do not depend for their implementation on the attitude which the judgement debtor might take when notice goes to him of the execution petition. Whether or not the judgement debtor resists the execution petition and whether or not the judgement debtor denies that he has means, the Court

cannot shirk its responsibility under the Code of instituting an enquiry to find out whether the judgement debtor has the requisite means to pay and yet wilfully refuses or neglects to pay the amount. O.21, R.40(1) C.P.C. lays down that-

"When a judgement debtor appears before the Court in obedience to a notice issued under R.37, or is brought before the Court after being arrested in execution of a decree for the payment of money, 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 judgement debtor an opportunity of showing cause why he should not be committed to the civil prison."

This provision further shows that even where the decree-holder produces evidence as to the means of the judgement debtor, still it would be essential for the Court to give the judgement debtor an opportunity of showing the cause as to why he should not be committed to civil prison. This opportunity is over and above the opportunity afforded by the service of notice of the executio