The executing court must follow the mandatory provisions of S. 51 and Order 21, Rules 37 and 40 of the Code of Civil Procedure before issuing an order for detention of a judgment debtor in civil prison.

( 1 ) THIS is judgment-debtor's revision under S. 115 of the Code of Civil Procedure against the order dated 11-8-1994 passed in Execution Case No. 1-B of 1986 by the Additional Judge to the Court of District Judge, Narsinghpur whereby warrant for sending the applicant in civil prison was issued.

( 2 ) IT is not necessary to State the facts in details. The non-applicant/bank obtained a decree for Rs. 39,541/- along with interest and costs against the applicant which was put to execution. In the execution proceedings an application was filed by the decree-holder Bank on 4-3-1994 for sending the judgment debtor to civil prison of which the notice to show cause was issued by the executing Court under Order 21, Rule 37 of the Code of Civil Procedure. The applicant submitted its reply. The executing Court to enforce the execution without holding an enquiry ordered of issue of warrant for detention of the applicant in civil prison.

( 3 ) HAVING heard Shri N. K. Patel, counsel for the applicant and Shri H. C. Kohli, counsel for the non-applicant, I am of the opinion that the order passed by the executing Court cannot be sustained.

( 4 ) SECTION 51 of the Code of Civil Procedure deals with the powers of Court to enforce execution. One of the mode for enforcement of the execution under clause (c) of S. 51 is by arrest and detention in prison for such period not exceeding the period specified in S. 58, where arrest and detention is permissible under this section. Before the Court passes an order for detention the Court has to satisfy the conditions of the proviso to S. 51 which reads thus :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,- (1) 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.

( 5 ) ORDER 21 of the code of civil Procedure deals with execution of decrees and orders. Arrest and detention in the Civil prison is dealt with from Rule 37 to 40 of Order 21. Order 21, Rule 37 speaks of discretionary power to permit judgment-debtor to show cause against detention in prison, relevant for the present case is extracted thus :"37. (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison : Provided that such notice shall not be necessary if the Court is 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. (2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor. "

( 6 ) ON appearance of the judgment-debtor in obedience of n