The main legal point established in the judgment is the distinction between an order of arrest and an order of detention in execution of a money decree, and the mandatory procedure for giving the judgment-debtor an opportunity to show cause before being committed to civil prison.

1. The petitioners, the judgment-debtors have filed this civil revision petition as against the order of arrest in S. P. No. 18 of 1996 on the file of the learned Subordinate Judge, Kallalkurichi, in execution of money decree passed against than in O.S.No.106 of 1985 on the file of the Sub Court, Viliupuram.

2. Both the petitioners, the judgment-debtors were ordered to be arrested through the impugned order dated 31.7.2000. The same is being challenged in this civil revision petition by both the judgment-debtors.

3. Mrs. Hema Sampath, the learned counsel appearing for the petitioners would vehemently urge the point that the order of executing Court is in error of jurisdiction, inasmuch as the Court has not followed the mandatory procedure laid down in Order 21, Rule 40 C.P.C. even without any enquiry or any evidence adduced by decree-holder in support of his application for execution and without giving opportunity to the petitioners to show cause as to why they should not be committed to Civil prison. The learned counsel would cite the authorities in P.G.R, Padayachi v. Mayavaram financial Corporation, AIR 1974 Mad. 1, Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470 and Muthusamy, M V. Supasri Chit Funds, Coimbatore, 2000 (II) CTC 168 to substantiate the plea that the impugned order passed without conducting such an enquiry and without following the mandatory procedure is bad in law.

4. I have carefully considered the submission made by the counsel for the petitioners and gone through the grounds, affidavit and typed set.

5. Having given my anxious consideration to the submission urged by the learned counsel for the petitioners, I am of the opinion that there is no merit in the point taken by the learned counsel for the petitioners. The circumstances under which the above conclusion is arrived at by this Court are hereunder.

6. The execution petition in E.P.No. 18 of 1996 has been filed under Order 21, Rule 10 and 11 of C.P.C. The prayer in the application and the affidavit filed by the decree-holder/respondent is to the effect that the notice may be issued under Order 21, Rule 37 and then to issue warrant against them under Rule 38 and collect the decree amount with interest, namely Rs.55,664. Accordingly, the notice was issued. Both the petitioners/judgment-debtors on receipt of notice entered appearance and filed counter stating that the insolvency petition is pending and therefore, the execution petition is to be dismissed. The executing Court on considering the affidavits filed by parties to the proceedings gave a finding to the effect that there is no material to show that in respect of the suit decree any insolvency petition is pending before any Court and ordered arrest of the petitioners to recover the decree amount. Thus, it is clear that the warrant has been issued under Order 21, Rule 38 C.P.C.

7. The relevant provision relating to the execution of the decree is Section 51 C.P.C. The perusal of the proviso to Section 51 would show that it makes it obligatory on the part of the executing Court to give an opportunity to the judgment-debtor to show cause as to why he should not be committed to prison before passing such an order. Thus, it applies not for ordering arrest of the judgment-debtor but only for committing him to prison. Section 51 proviso 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 judgment-debtor an opportunity of showing cause why he should not be committed to prison.”

8. The above Section 51 provides arrest and detention in prison as one of the modes of executing a decree. As per the terms of the proviso, the decree-holder has necessarily to prove: (1) that the judgment -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 judgment-debtor refuses or neglects or has refused or neglected t