The court cannot order the arrest of a judgment-debtor unless the decree-holder alleges and proves the existence of a circumstance justifying the arrest.

RAGHUBAR DAYAL, J.:- This is an appeal by the judgment-debtor against the order rejecting his objection to the decree-holders application for execution of the decree by his arrest.

2. The decree-holder applied on 29-11-1950 for the execution of his decree for over Rs.6,000/-by the arrest of the judgment-debtor, mentioning in the application that he had already realised Rs.1,574/6/-. On this application notice was ordered to be issued to the judgment-debtor. When the judgment-debtor appeared in court, he put in an application stating various reasons why he should not be arrested in execution of the decree. He was examined on his behalf and stated on oath that he had no intention not to pay the decree-holder. He was cross-examined by the decree-holder and it came out during cross-examination that he had sold certain property to the co-operative societies under two sale deeds, one for Rs.2500/- and another for Rs.4,000/- and that out of this amount, which the got for the sale of the property, he did not pay anything to the decree-holder whose decree was without interest.

Thereafter, the learned Civil Judge ordered his arrest holding that it appeared from his not paying a single shell to the decree-holder out of the sale-consideration realised by him that he had made wilful default in payment of the decretal money.

3. It has been urged for the appellant that this order is bad in law in view of the provisions of S.51, C.P.C., and in view of no opportunity being given to the judgment-debtor to explain how he had utilised the sale consideration he had received. We agree with the contention for the appellant.

4. Section 51, C.P.C. provides that one mode of the execution of the decree is by arrest and detention in prison and the proviso to the section is:

"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, the Court, for reasons recorded in writing, is satisfied-

(a) that the judgment-debtor, with the object or effect of 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 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, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account."

This proviso was added in 1936 by S.2, Code of Civil Procedure (Amendment) Act, 1936.

5. The same Act made certain alterations in O.21, Rr.37 and 40. Under R.37 it made it incumbent on the court to issue a notice calling upon the judgment-debtor to appear before the court and show cause why he should not be committed to the civil prison instead of issuing a warrant for his arrest. Prior to this amendment it was discretionary with the court either to issue a warrant of arrest at once or to issue a notice.

The other amendment made in this rule was the insertion of the proviso to the effect that such a notice would not be necessary if the court was satisfied by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the court.

It would be seen that the issue of the notice can be dispensed with only when the court would be justified in ordering the arrest of the judgment-debtor in view of sub-cl. (i) to cl. (a) to the proviso of S.51. Notice has to be issued to the judgment-debtor whenever the grounds for the arrest of the judgment-debtor woul