G.K. Misra, C.J.
1. The petitioner had taken auction of a fishery for an amount of Rs. 16,825/-. He defaulted to pay a sum of Rs. 5,000/- out of it Action was taken against him under the Public Demands Recovery Act. A notice was issued under Rule 25 of Schedule II of the Orissa Public Demands Recovery Act, 1961 (hereinafter to be referred to as the Act). Some of his immovable properties were attached, sale proclamation was issued, but the sale has not taken place yet. While the matter was thus pending, a notice was issued to the petitioner on 11-3-1969 as to why a warrant of arrest should not be issued against him.
On 10-8-1970 another order was passed that the show cause notice was served. As the judgment-debtor failed to pay the dues a warrant of arrest was issued against him and he was produced in custody under arrest. The Certificate Officer then passed the impugned older dated 16-3-1974 putting the petitioner to civil prison. It is against this order that the writ application has been filed under Articles 226 and 227 of the Constitution.
2. Mr. Mohanty for the petitioner accepts the position that notice was served on the petitioner under Section 37 (1) and that the petitioner was brought under warrant of arrest under Section 37 (2) (b) of the Act. This Sub-section lays down that notwithstanding anything contained in Sub-section (1), if the Certificate Officer is satisfied that the certificate-debtor refuses or neglects or has refused or negledted to pay the same, he may issue a warrant for the arrest of the certificate-debtor. Mr. Mohanty therefore does not rightly challenge the arrest of the petitioner under Section 37 (2) (b) of the Act.
3. The main contention of Mr. Mohanty is that after the petitioner was brought under warrant of arrest there should have been an enquiry under subsection (5) of Section 37 before the final order was passed directing the petitioner to be put to civil prison and findings should have been recorded under Section 37 (1) (a) or (b) justifying the detention in civil prison. The contention appears to be well founded.
4. To appreciate the aforesaid contention, Section 37 (5) may be extracted:--
'37 (5). When a certificate-debtor appears before the Certificate Officer in obedience to a notice to show cause or is brought before the Certificate Officer under Sub-section (4), the Certificate Officer shall proceed to hear the certificate-holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the certificate-debtor an opportunity of showing cause why he should not be committed to the civil prison.'
Sub-section (5) thus indicates the procedure to be followed when the certificate-debtor either appears in response to a show cause notice issued under Section 37 (1) or is brought under arrest under Section 37 (2).
5. The next question for consideration is as to on what point the enquiry is to be made. It is here Section 37 (1) throws light. Section 37 (1) may be extracted:--
'37 (1). No order for the arrest and detention in civil prison of a certificate-debtor in execution of a certificate shall be made unless the Certificate Officer has issued and served a notice upon the certificate-debtor calling upon him to appear before him on a day to be specified in the notice and to show cause why he should not be committed to civil prison, and unless the Certificate Officer, for reasons in writing, is satisfied--
(a) that the certificate-debtor, with the object or effect of obstructing or delaying the execution of the certificate has, after the filing of the certificate in the office of Certificate Officer, dishonestly transferred, concealed, or removed any part of his property; or
(b) that the certificate-debtor has or had since the date of the filing of the certificate, the means to pay the amount for which the certificate has been issued, or some substantial part of such amount and refuses or neglects or has refused or neglected to pay the same.
Explanation -- In the calculation of the means of the certificate-debtor for the purpose of this clause there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the certificate.'
It would appear from Clauses (a) and (b) that before the certificate-debtor is kept in detention, pre-conditions must be satisfied. Under Section 37 (1) (a) a finding must be recorded that the certificate-debtor dishonestly transferred, concealed or removed any part of his property with the object or effect of obstructing or delaying the execution of the certificate after it was filed. Under Clause (b) a finding must be recorded to the effect that the certificate-debtor had means to pay the amount for which the certificate had been issued or a substantial part thereof after the filing of the certificate and he refuses or neglects to pay such amount. Unless anyone of the findings is recorded, the certificate debtor is not liable to be put to civil prison. The enquiry under Sub-section (5) is therefore to be directed towards determination of the conditions prescribed in Section 37 (1) (a) or (b). The impugned order does not show that there was an enquiry to that effect. The certificate-holder did not produce any evidence and the certificate-debtor was therefore not called upon to adduce evidence to the contrary. On the other hand, purely on extraneous consideration the impugned order was passed. The relevant portion of the order is quoted hereunder:--
'Again the certificate-debtor was heard today in the court and given opportunity to state about his case. He further states that he would make some part payment within a week to which I have no confidence on him. Unless the certificate-debtor is put to civil prison, I think he will never realise the seriousness of the case to make any payment nor this case can be disposed of.' Such a finding is not called for under Section 37 (1) (a) or (b). The Certificate Officer committed an error of law apparent on the face of the record. The impugned order is therefore liable to be quashed,
6. Section 51 C. P. C. more or less is in the same language so far as the procedure in execution by arrest and detention in prison is concerned and the identical conditions have been prescribed in the proviso appended thereto. A Bench of the Allahabad High Court in AIR 1955 All 402 (Harpal Singh v. Hira Lal) arrived at the same conclusion with the aforesaid analysis. With respect we agree with the view taken in that case.
7. In the result, the writ application is allowed with costs. The impugned order dated 16-3-1974 is quashed. A writ of certiorari be accordingly issued. The certificate-debtor be released from civil prison. The bail bond executed by the petitioner be discharged. Hearing fee of Rs. 100/- (one hundred) against opposite parties 1 and 2 only.
S.K. Ray, J.
8. I agree.