Kumari P. Janaki Amma, J.
1. The judgment-debtor in a decree for realisation of money is the revision petitioner. Execution was sought for realisation of the decree amount both by sale of the petitioner's properties and by arrest and detention of the petitioner after notice under Order XXI Rule 37 C. P. C. The petitioner did not appear in court on issue of notice. On 28-5-74, the Court entered a finding on the basis of an affidavit filed by the decree-holder-respondent that the petitioner is possessed of means to pay the decree debt and that he neglected to pay the same. The Court issued warrant for the arrest of the petitioner. The petitioner moved for withdrawal of the arrest warrant and filed objection to the execution petition. The case was being adjourned for enquiry, While so, the petitioner paid some amount towards the decree debt. For some time, there was stay of execution under Act 30 of 1975. After the promulgation of Ordinance 1 of 1977, an application was filed by the petitioner for relief under that Ordinance. It was, however, dismissed. The decree-holder thereafter moved for the issue of warrant. The court passed the following order on 9th September, 1977.
'In this E. P. the decree-holder seeks to execute the decree by arrest and detention of the judgment-debtor in civil prison. E. A. disposed of. Means already proved. Issue arrest warrant.'
The revision petition is directed against the above order.
2. The Court appears to have been labouring under a confusion regarding the procedure to be followed in connection with execution of a decree for money by arrest and detention of the judgment-debtor. I notice the same confusion in a number of cases that have come up before me recently.
3. Section 51 of the Civil P. C. empowers the Court to order execution of a decree by arrest and detention in prison of the judgment-debtor in appropriate cases for the periods specified in Section 58, C. P. C. No order for detention of the judgment-debtor in civil prison is to be made where the total amount of the decree does not exceed five hundred rupees (See Section 58(1A)). Proviso to Section 51 directs that execution by detention in prison shall not be ordered unless, the judgment-debtor is given an opportunity of showing cause why he should not be committed to prison. Ordinarily in cases where the decree-holder, wants execution by arrest and detention of the judgment-debtor, he would file an affidavit showing that the conditions exist for ordering such execution. Order XXI Rule 11-A of the Code as amended in 1976 makea it obligatory to file an affidavit showing the grounds of arrest, along with the application for execution. O. XXI R. 37 gives the discretion to the Court to issue a notice instead of a warrant of arrest, calling upon the judgmemt-debtor to appear on a specified date and show cause why he should not be committed to the civil prison. Where appearance is not made in obedience to the notice, the court, at the instance of the decree-holder would issue a warrant for the arrest of the judgment-debtor. The warrant would contain a direction that the judgment-debtor be brought before Court unless in the meanwhile the amount which has been ordered to pay with interest and costs is paid by him. If the judgment-debtor appears in obedience to notice or is brought before Court on arrest, the Court should conduct an enquiry as detailed in O. XXI, Rule 40. The Court should hear the decree-holder and take all such evidence as may be produced by him to support of the application for execution. O. XXI Rule 40 (1) does not dispense with taking of evidence even in cases where an affidavit has been filed under O. XXI, Rule 11-A. If any witnesses are examined, the judgment-debtor should be allowed to cross-examine them. Thereafter, the Court should give an opportunity to the judgment-debtor to show cause why he should not be committed to a civil prison. Upon the conclusion of the enquiry, the Court may make an order for the detention of the judgment-debtor and may cause him to be arrested if he is not already under arrest Under proviso to Section 51, the Cour before ordering detention in prison should record its reasons in writing and should be 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.
Explanation to the section also stipulates that for calculating the means of the judgment-debtor the items of property exempt from attachment should be left out.
4. In the instant case, what the Court did on receipt of the execution petition was to order notice to the judgment-debtor. When he did not appear the court entered a finding, on the basis of the affidavit of the decree-holder that the judgment-debtor has means to pay the decree debt and has neglected to pay. The finding was entered before the Court ordered issue of warrant under Order XXI, Rule 37 C. P. C. After the Judgment-debtor filed objections to the execution, the court posted the petition for enquiry. In the meanwhile, Act 30 of 1975 and Ordinance 1 of 1977 came into force. On 9-9-1977, the Court dismissed the application under Ordinance I of 1977. It was on the same day that the Court passed the impugned order. From the trend of the order, the apprehension of the judgment-debtor that it was passed under Order XXI, Rule 40(3) appears to be reasonable. If that be so, it is clearly unsustainable in law.
5. Since Order XXI, Rule 40, C. P. C. directs an enquiry, it was irregular on the part of the Court to have acted on the affidavit of the decree-holder filed before the issue of warrant under Order XXI, Rule 37. Even assuming that Court can act upon an affidavit of the decree-holder in appropriate cases where the judgment-debtor does not contest and when all the relevant facts necessary for the Court to decide the case are contained in the affidavit, in cases where the judgment-debtor contests, it is incumbent that the Court should give him an opportunity to adduce evidence as directed in Order XXI, Rule 40, C. P. C.
6. The order passed in the case also violates the proviso to Section 51 as it is not made out whether the conditions referred to therein are satisfied.
The revision petition is, therefore, allowed. The order of the Munsiff passed on 9-9-1977 is set aside. The execution petition is remanded for fresh disposal, according to law.