The proviso to Section 51 of the Code of Civil Procedure applies only to an order of detention and not to an order of arrest.

N.S. RAMASWAMI, J. :- This Civil Miscellaneous Appeal is against the order of arrest passed by the learned Subordinate Judge, Cuddalore in execution of a money decree. There are two judgement-debtors and both were ordered to be arrested by the order dated 19-3-1968. The 2nd judgement-debtor is challenging the said order in this Civil Miscellaneous Appeal. The point taken by the learned counsel for the appellant is that the order of the executing Court is one without jurisdiction inasmuch as the Court has not recorded its reasons for ordering arrest after giving an opportunity to the appellant for showing cause as to why he should not be arrested in execution. Reliance is placed on the proviso to Section 51 of the Code of Civil Procedure. But we are of opinion that there is no merit it the point taken by the learned counsel.

2. It is no doubt true that the order of the executing Court is a one line order and it says : "No payment made. Arrest D1 and D2 by 9-4-1968. Batta after a week." The executing Court has not recorded any reason for ordering arrest except saying that no payment had been made. But a perusal of the relevant provisions of the Code of Civil Procedure would show that the proviso to Section 51, which makes it obligatory on the part of the executing Court to give an opportunity to the judgement-debtor to show cause and record its reasons; applies not for ordering arrest of the judgement-debtor but only for committing him to prison. In other words, only before the executing Court orders the judgement-debtor to be detained in civil prison, it has necessarily to give an opportunity to the judgement-debtor to show cause against such an order and the Court should also record its reason in writing for committing the judgement-debtor to prison.

3. The proviso to Section 51 is as follows :-

"Provided that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgement-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 judgement-debtor, with the object or effect of the 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 judgement-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 judgement-debtor was bound in a fiduciary capacity to account."

The same section, viz., Section 51, provides arrest and detention in prison as one of the modes of executing a decree. In the present case, the decree-holder has sought execution of the decree by arrest and detention of the judgement-debtor on the ground that the judgement-debtor has means to pay the decree amount (or a substantial part thereof) and refuses or neglects or has refused or neglected to pay the same as contemplated under clause (b) of the proviso to Section 51. As per the terms of the proviso, the decree-holder has necessarily to prove : (1) that the judgement-holder has, or has had since the date of the decree, the means to pay the decree amount or some substantial part thereof and (2) that the judgement-debtor refuses or neglects or has refused or neglected to pay the same. This proof should be adduced before ever the judgement-debtor could be committed to prison and only after the judgement-debtor had been given an opportunity to show cause against such detention and after the executing Court recorded its reasons in support of its order.

4. The provisions of the Code make a distinction betw