Janaki Amma, J.
1. The appellant in this case is the judgment-debtor in O. S. No. 48 of 1971 of the Munsiff's Court, Shertallai. In execution of the above decree notice was issued to the appellant under Order XXI, Rule 37 to show cause why he should not be arrested and detained in prison for nonpayment of the decree debt. The appellant appeared befpre Court and filed objections, one of the objections being that he had no means to pay. However on a subsequent date to which the case stood posted, he paid Rs. 100. Some more amounts were also paid On the adjourned dates. The case stood posted to 28th September, 1972 for payment of the balance amount. No amount was paid on that day and therefore warrant was issued.
2. The appellant then filed a petition for permitting him to pay the decree debt in instalments. That petition was dis-missed. The order of dismissal was confirmed in appeal and second appeal in the meanwhile a fresh petition for execution was filed. It was taken up after the disposal of the second appeal. On 23rd November, 1974 the Court after hearing the parties passed the following order; 'Heard. Issue warrant. Report 3rd January, 1975.' Against the above order an appeal was filed before the District Judge, Alleppey. The main contention put forward was that the appellant had no means to pay. The appellate Court held that since the appellant had given up the plea of no means and offered to pay the decree debt in instalments he was precluded from putting forward that plea again, and on that ground dismissed the appeal. It is against the above order that the present appeal is filed.
3. Assuming that the judgment-debtor did not press the objection regarding means, the further question is whether that alone would entitle the decree-holder to demand arrest and detention of the appellant. 4. The relevant provisions dealing with arrest and detention of the judgment-debtor in execution of decree is contained in Section 51 of the Civil Procedure Code. The proviso to that section reads:
'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'
5. Order XXI, Rule 40 dealing with arrest and detention of the judgment-debtor reads:
'40. Proceedings on appearance of judgment-debtor in obedience to notice or after arrest.-- (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.'
6. Decisions uniformly lay down that the burden of proving that the condi-tions mentioned in Section 51 exist is on the decree-holder. The decision Harpal Singh v. Hira Lal, AIR 1955 All 402 is one of the cases which interprets the above provision. The conclusions are laid down in the, following passage:
'Before the Court can issue a warrant of arrest or a notice to the judgment-debtor, under Rule 37, Order XXI, it has to see that the judgment-debtor is liable to arrest in pursuance of the application for execution. This means that the nature of the decree should be such that it can be executed by the arrest of the judgment-debtor and that such circumstances exist that an order of arrest can be made against the judgment-debtor, in case the Court was satisfied of those circumstances. Such circumstances are what are mentioned in clauses (a) to (c) to proviso to .Section 51.'
7. In A.K. Subramania Chettiar v. A. Ponnuswami Chettiar, AIR 1957 Mad 777, Ramaswami, J. observed:
'To sum up, the duty of the Court isto follow the procedure prescribed underOrder XXI, Rule 40 C. P.C. and then findif it is satisfied on the evidence that theinstant case before it falls within any ofthe clauses in the provisos (a) to (c). If thecase falls within any of the clauses of theproviso then Court has to record its reasonsin writing that the judgment-debtor shouldbe committed to prison for one of the fivereasons set out therein. If the cause is insufficient the Court is bound to order arrestIf on the other hand the decree-holder failsin the discharge of his burden to prove thatthe circumstances specified in the sectionexist, the Court is equally bound to reject-the application.'
8. Sub-clause (b) of the proviso to Section 51, C. P. C. in so far as it deals with the question of means has been inter-preted in Harpal Singh v. Hira Lal, AIR 1955 All 402 as follows:
'Mere non-payment to the decree-holder when the judgment-debtor came into possession of means subsequent to the date of decree will not always be sufficient for comingto the conclusion that the judgment-debtorrefused or neglected to pay the decree-holder. Refusal implies that a request wasmade to the judgment-debtor at the timewhen he had the means to pay and yet theJudgment-debtor did not pay and declined tomake any payment There is nothing on therecord to suggest that any such requestwas made when the judgment-debtor hadthat money with him and that the judgment-debtor refused to pay the decree-holder. Negligence to pay also connotes thatwhen the judgment-debtor could have paidhe just omitted to pay due to his negligenceor carelessness. If the judgment-debtor hadother claims to satisfy or other more urgentnecessities to meet and spend the money onsuch purposes, it cannot be said that heneglected to pay the decree-holder. In theabsence of evidence which could have abearing on these considerations the Courtbelow could not have felt satisfied that thejudgment-debtor had refused or neglected topay the decree-holder's amount within themeaning of clause (b) to the proviso to Section 51, C. P. C.'
9. The following observations of Krishna Iyer, J. in Xavier v. Canara Bank Ltd., 1989 Ker LT 927 are also pertinent to the matter in hand:
'A brief sum up of the content of Section 51 (c) read with the proviso may nowbe given. The judgment-debtor will comewithin the provision if he has current meansto pay the amount of the decree and still refuses or neglects to pay the same. 'Means',in this context, depends on liquid resourcesor assets which can reasonably furnish suchresources. 'Neglect', is something less thanrefusal but more than mere omission and involves some sort of demand and indifferentresponse, Thus, if the judgment-debtormakes a credible offer to pay in reasonableinstalments, it is a negation of 'neglect' topay.'
10. That a debtor offers to pay thedecree debt in instalments need not necessarily mean in every case that he has at thetime of the offer the means to pay the decree debt in full or a substantial part thereof. It is quite possible that he makes theoffer to maintain his respectability beforethe public and under the hope and expectation that money would be forthcoming infuture for payment of the instalments. Whe-ther he has means to pay has to be decid-ed irrespective of the offer to pay instalments.
11. The debt in the instant case is secured on immovable property and the decree directs recovery of debt by sale of the property mortgaged. In such cases execution against the person of the judgment-debtor is expected to be taken only after exhausting the remedy against the property. But the decree is not drawn up in accordance with the provisions of Order XXXIV, C. P. C. It permits execution against the person of the appellant also. Still the fact that the appellant has secured his property for the payment of the debt should be taken into account while deciding whether there has been neglect or refusal on his part. There is neither justice nor equity in asking a person who has mortgaged his properties for a loan that he should discharge the debt by sale of his other properties or in the alternative face an arrest and detention in prison.
12. I may also refer here to the observations of Ramaswami, J. in A. K. Subra-monia Chettiar v. A. Ponnuswami Chettiar, AIR 1957 Mad 777 at p. 779:
'In considering whether the decree-holder has affirmatively shown that the judgment-debtor has sufficient means to pay the decree amount and which burden can be discharged either by affirmative evidence or by placing sufficient circumstances be-fore the Court to lead to that inference, the Court should bear in mind what has been laid down in Madhavan Nambiar v. Chaldean Syrian Bank, Ltd., 1955-2 Mad LJ 121 = AIR 1955 Mad 409, viz., that the Code was amended so as to protect honest debtors of all classes from detention in prison and to confine such provisions to debtors proved to be recalcitrant or fraudulent or contumacious (Marris v. Ingram, per Jes-sel M. R. (1879) 13 Ch D 338 at p., 343) that it applies to all judgment-debtors and the protection is not restricted only to small debtors, that it is open to a Court to apply a judicial corrective to the extreme lengths to which the onus which the Code casts on decree-holders is sought to be taken by adopting 'the view' that it is perfectly open to an executing Court oh the materials plac-ed before it, to come to an inference as regards the statutory findings required by provisos (a) (ii) and (b) of Section 51 of the Code of Civil Procedure,'
13. It follows that person should not he subjected to arrest and detention on the sole ground that he owns a few items of property if the decree-holder is not in a position to establish refusal or neglect to pay the decree debt as provided in the proviso to Section 51, C. P. C.
14. Ordinarily in a suit on a mortgage the procedure prescribed in Order XXXIV, C. P. C., Rules 4, 5 and 6 is expected to be followed and a decree against the person of the mortgagor is to be passed only under Order XXXIV, Rule 6 after exhausting the remedy against the property. This procedure is not seen followed In this case. The decree that is passed and which is being executed is termed 'preliminary decree', although it is not in strict conformity with the provisions of Order XXXIV, Rule 4 or Form No. 5-A of Appendix D of the Civil Procedure Code. No final decree is seen produced for the purpose of execution. The Courts below omitted to note the irregularity.
15. It is clear from the foregoingparagraphs that the Munsiff and the appellate Court have not considered whetherthere is an executable decree in the case,whether the nature of the decree warrantsexecution by arrest and detention of thejudgment-debtor and whether a case of refusal or neglect has been made out or canbe inferred from the circumstances provedin the case.
I therefore allow the appeal. The, orderof arrest passed by the Munsiff and confirmed in appeal is set aside. The executionpetition is sent hack for disposal, accordingto law. The parties will bear their respective costs.