Legality of the order for arrest without notice to judgment debtor.

It is clear that before the appellant was ordered to be arrested no notice was given to him and therefore the order of the learned Judge to the effect, viz., “means proved, arrest by 6th June, 1950” cannot be justified in view of the proviso to section 51 of the Civil Procedure Code which lays down 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, etc. So it is evident that before an order for arrest is made, the judgment-debtor should be given an opportunity of showing cause why he should not be arrested. The preamble to the District Munsif’s order clearly states that the respondent has been given no notice at all. Such being the case, the order appealed against is unsustainable and has to be set aside. I therefore set aside the orders of the lower Courts and remand R.E.P. No.112 of 1950 to the trial Court for restoration to its original number on the file and disposal, after giving notice to the respondent, expeditiously. As this point was not taken in the lower Court, nor even in the grounds of appeal to this Court, I direct each party to bear his own costs in this second appeal.

V.S. ----- Appeal allowed.