Pankhapakesa Ayyar, J.
1. This is a petition by one T. Kunhi Raman, the judgment-debtor in E.P.No. 31 of 1954 and a pensioned Deputy Nazir, to revise and set aside the order of the District Munsif of Kuthuparamba, North Malabar, directing his arrest by 16th July, 1955, ex parte in respect of a decree for a sum of Rs. 160 in favour of the petitioner in the E.P. (Respondent here). I have perused the entire records and heard Achuthan Nambiar the learned Counsel for the petitioner and N.R. Sesha Ayyar the learned Counsel for the decree-holder-respondent.
2. Mr. Sesha Ayyar raised a preliminary objection that a civil revision petition would not lie to this Court and only an appeal would lie to the District Court, North Malabar, in view of the observations of a Bench of this Court in Ponnappa Reddi v. Thiruvengadam Pillai and Co., Mr. Achuthan Nambiar strenuously disputes this, and says that the observations in that Bench judgment will not apply to an order for arrest contravening the mandatory provisions of Section 51 of the Civil Procedure Code. I agree with him. The observations in question are found at page 108, and run as follows:
It is well-settled that when a small cause decree of the Sub-Court or of a District Munsif's Court is transferred to the Original Side of the Sub-Court or of the Munsif's Court for execution against the immovable property of the judgment-debtor, there is a right of appeal under Section 47, Civil Procedure Code, and the rules applicable to the proceedings in execution of the original decree are applicable to the execution proceedings of the Small Cause decree transferred to the Original Side of a Court.
But here the prayer in the execution petition granted by the lower Court was not for execution against the immoveable property of the judgment-debtor but for the arrest of the judgment-debtor and the observations quoted above will have no application whatever.
3. The arrest of a citizen of the Indian Republic is a grave matter involving his his fundamental rights. Section 51, Civil Procedure Code, has clearly stated, among other things, that a judgment-debtor should not be ordered to be arrested unless the Court holds that he has had since the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects to pay the same. This Court has held that the mandatory provisions of Section 51, Civil Procedure Code, must be complied with before arrest is ordered. The lower Court does not say that in its opinion the jugment-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 therefore, illegal and has to be set aside. It is phenomenally brief and runs:
Respondent called Absent. Vakil reports no instructions. Arrest by 16th July, 1955.
No reason whatever is given as to why arrest is ordered, and the mandatory provisions of Section 51, Civil Procedure Code, have been ignored. Mr. Sesha Ayyar says that as the petitioner was ex parte, reasons need not be given. I am afraid I cannot agree. Under our law ex parte orders of arrest and. orders of arrest after contest are exactly on the same footing and Section 51, Civil Procedure Code, makes no difference whatever between the two cases. Arrest after contest or ex parte involves the same painful consequences to the man arrested.
4. In this view, I allow the civil revision petition, though without costs, and set aside the order of arrest and remand Execution Petition No. 31 of 1954 in S.C. No. 185 of 1952 on the file of the District Munsif Court, Kozhikode, to the Court of the Subordinate Judge, Tellicherry (to which it has been transferred) for fresh disposal after a fresh notice to the petitioner and after observing the mandatory provisions of Section 51 of the Civil Procedure Code and all other provisions of law.