K.S. Hegde J.
1. The first judgment-debtor in Execution Case No. 115 of 1954, on the file of the learned Second Additional District Judge, Bangalore, is the appellant in this Court. He has been ordered to be arrested as per the order dated 13-6-1955. This order is the subject-matter of the present appeal. The only ground urged is that there has not been due compliance of Section 51, C. P. C. The appellant complains that the Court below has not found that the Decree-holder has established any of the requirements set out in Section 51 and without such a finding, the order of arrest is not sustainable,
On the other hand the learned counsel for the decree-holder (respondent) contends that the order that has been passed is one of arrest and us such Section 51, C. P. C., is inapplicable. According to him, the relevant provisions are Rules 37 and 40 of Order XXI, C. P. C. He urges that Section 51 comes into play only when an order of detention is to be passed. To properly understand the respective contentions, it is desirable to set out the relevant provisions of law.
2. Rule 37 of Order XXI reads as follows;
'(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.'
Rule 40 of Order XXI, C. P. C., is as follows:
'(1) When a judgment-debtor appears before the Court in obedience to a notice issued under Rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison.
'(2) Pending the conclusion of the enquiry under Sub-rule (1) the Court may. in its discretion, order the judgment-debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required.
(3) Upon the conclusion of the enquiry under Sub-rule (1) the Court may, 'subject to the provisions of Section 51' and to the other provisions of this Code, 'make an order for the detention of the judgment-debtor' in the civil prison and shall in that event cause him to be arrested if he is not already under arrest: .....' (Underlining.is ours (hereinto ' ' above).
3. In the instant case, it is not denied that the necessary notice under Rule 37 had been issued to the judgment-debtor before ordering his arrest. Sub-rules (1) and (2) of Rule 40 provide for the arrest and the custody of the judgment-debtor, whereas Sub-rule (3) of Rule 40 deals with the detention of the judgment-debtor in the Civil prison. It is only when an order under Sub-rule (3) of H. 40 has to be made, it will have to be made subject to the provisions' of Section 51.
There is no need to comply with the requirements of Section 51 while acting under either Rule 37 or under Sub-rules (1) and (2) of Rule 40. Having examined these rules we may now usefully proceed to examine Section 51, C. P. C. But before doing so, we may mention that the decree under execution is a money decree and the relief prayed for is by arrest and detention of the judgment-debtor in the civil prison. The relief prayed for falls under Clause (c) of Section 51. In this case we are concerned with the proviso to Section 51 (1), C. P. C. It 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 he committed to prison, the Court for reasons recorded in writing, is satisfied .....' (Underlining is ours (hereinto ' ' above)).
4. The Court will have to be satisfied that one or the other of the conditions set out under that proviso is applicable to the facts of the case before ordering the detention of the judgment-debtor. The inhibition contained in Section 51 is not made applicable while ordering the arrest of the judgment-debtor. This is the view taken in 'Londa, Abbayec of Pithapuram v. B. Snryanarayana', AIR 1948 Mad 9.
His Lordship Horwill J., after a careful examination of the relevant provisions has come to the conclusion that the mandatory Proviso to Section 51 will have to be satisfied only while committing the judgment-debtor to the prison and not at the earlier stages. This appears to us to be the correct view of the law.
We may not be understood to say that in every case the executing Court should postpone enquiring about the requirements of Section 51, C. P. C., till the stage of detention is arrived at. In appropriate cases, the executing Court may combine the relevant enquiries relating to arrest with that of detention. But if separate enquiries are held, the same is neither illegal nor even irregular.
5. Sri V. Krishnamurthy, the learned counsel for the appellant has relied on the decision in T. Kunhiraman v. P. I. Madhavan Nair : AIR1957Mad761 . In that decision His Lordship Panchapakesa lyer has observed:
'The mandatory provisions of Section 51 must be complied with before arrest is ordered. Where the lower Court docs not say that in its opinion the judgment-debtor has had, since the date of the decree, the means to pay the amount of the decree-or some substantial part thereof and has refused or neglected to pay the same the order of arrest is illegal and has to be set aside. Even when the order is passed ex parte, the provisions of the section must be complied with. Ex parte orders of arrest and orders of arrest after contest are exactly on the same footing and Section 51 makes no difference whatever between the two cases'.
Similar observations are found in a number of other decisions. With great respect to the learned Judges who decided those cases we are of the opinion that those decisions do not lay down the law with exactitude. At best they state only broad propositions which bear qualifications. It is true that the executing Court before ordering the detention of the appellant in civil prison is bound to comply with the requirements of Section 51, C. P. C. But that stage is yet to be reached. Hence the order under appeal cannot be assailed.
6. In the result, the appeal fails and the same is dismissed with costs.
Nittoor Sreenivasa Rau J.
7. I agree with the order proposed by my learned brother and I may refer to some provisions of the Code of Civil Procedure to emphasise that arrest and detention in Civil prison represent two different and distinct stages in the process of execution of a decree and that much of the confusion that prevails in the matter can be avoided by remembering the distinction.
8. Section 51, Clause (c) indicates that arrest and detention in prison is one mode of executing a decree. The proviso to that section refers only to execution by detention in prison and not to execution by arrest and detention in prison. This makes it clear that the need for the Court to be satisfied that the conditions mentioned therein exist and to record such reasons applies only to an order for detention in prison and not to arrest.
9. Sub-sections (3) and (4) of Section 55 provides that where a judgment-debtor is arrested and brought before the Court, the Court shall inform him that he may apply to be declared an insolvent and that if the judgment-debtor expresses his intention so to apply and furnishes security the Court may release him from arrest and if he fails to apply and to appear before the Court when called upon the Court may commit him to civil prison in execution of the decree.
10. Again under Section 58 a judgment-debtor, who has been detained in civil prison in execution of a decree and released from detention, though such release shall not by itself discharge him from his debt, shall not be liable to be rearrested in execution of that decree. Mere arrest without being followed by detention in prison will not exonerate the judgment-debtor from rearrest.
There is an exception to this exoneration under Section 135A in respect of a person released from detention in consequence of his being a member of a legislature, for if such a person is released from civil prison during the period mentioned in subsection (1) of that section he is liable to rearrest & to the further detention to which he would have been liable under Section 58, if he had not been re-leased under the provisions of Sub-section (1) of Section 135-A.
11. Rules 37 and 40 of Order XXI contemplate an order for arrest being made only after the judgment-debtor is notified and the decree-holder and judgment-debtor arc given opportunity for showing cause why the judgment-debtor should or should not be committed to the civil prison. This is subject to the exception that if the Court is satisfied that with the object and 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, the Court can order arrest without notice.
12. Clause (2) of that rule provides that if the judgment-debtor does not appear and if the decree-holder so requires, the Court shall issue a warrant for the arrest of the judgment-debtor. Rule 40, as already mentioned above, provides that the question whether the judgment-debtor should or should not be committed to the civil prison shall be inquired into after giving an opportunity to both the parties.
If the judgment-debtor is already under arrest either because the Court has ordered his arrest without notice in the circumstances mentioned above or because the judgment-debtor has failed to appear in obedience to the notice issued the Court can order the detention of the judgment-debtor in the custody of an officer of the Court or release him on his furnishing security for appearance. It may be noted that the detention of the judgment-debtor in the custody of an officer of the Court is not the same thing as detention in civil prison and will not entitle the judgment-debtor to exoneration from re-arrest under the proviso to Section 58, Sub-rule (4) of this rule specifically says so.
13. Section 51 of the Code makes it obligatory that the Court has to satisfy itself by enquiry that the conditions mentioned in the proviso to that section exist before it commits the judgment-debtor to civil prison.
14. It will thus be noticed that while as a general rule it would be convenient and proper that an enquiry as to the liability of the judgment-debtor to be committed to civil prison should be made before arrest is ordered, such determination is not a condition precedent for the order of arrest itself.
15. In the present case, though the judgment-debtor was notified and appeared before Court, he urged before the court, apart from matters pertaining to the satisfaction of the decree, only one ground in regard to his non-liability for detention in prison, that is, that a session of the House of Legislature of which he was a member was impending. That was not substantiated. It may be noticed that the order for his detention has not yet been made and the Court has still to satisfy itself and record reasons for such satisfaction before it orders his detention in civil prison. That stage has not yet arrived.
16. Hence there is no reason to interfere with the order made by the Court below.
17. Appeal dismissed.