1. In execution of a Small Cause decree, the petitioner, who is the judgment-debtor, was given notice to show cause why he should not be committed to prison. He appeared and filed a counter ; but on the date to which the application was posted for disposal he was absent. His objections were apparently read but overruled. The decree-holder was then ordered to pay arrest batta and when that was done, an order was issued for his arrest. In pursuance of that order he appeared before the Court; but he was released as, he furnished security to file an insolvency petition. The execution petition was thereupon dismissed. The two civil revision petitions have been filed, one against the order of arrest and the other against the order overruling the petitioner's objections.
2. Order 21, Rule 40 of the Code of Civil Procedure makes the procedure quite clear when a decree-holder is desirous to have the judgment-debtor committed to prison. In the first place, notice must go to him. Then if he fails to appear in answer to the notice, the Court may, if the decree-holder so wishes, order his arrest. He is then brought before the Court, which should take the evidence of the decree-holder in support of his application and give the judgment-debtor an opportunity of showing cause why he should not be committed to civil prison. Then under Sub-rule (3), the Court may commit the judgment-debtor to detention in a civil prison subject to the provisions of Section 51. Section 51 contains the mandatory provision that the judgment-debtor shall not be committed to prison unless the Court is satisfied for reasons recorded in writing that the judgment-debtor should be committed to prison for one of the five reasons set out in the section. Under Rule 37(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. In this case the judgment-debtor did appear in obedience to the notice, but failed to appear on the adjourned date when the matter came up for inquiry. If the Court had eventually ordered the detention of the judgment-debtor in prison as a result of overruling the judgment-debtor's objections, the order would have been open to the objection that the learned Subordinate Judge had not complied with the mandatory provisions of Section 51 ; because before committing the judgment-debtor to a civil prison, the Court is bound to be satisfied that one of the Clauses (a) to (c) of the proviso to Section 51 makes the judgment-debtor liable to be detained in prison. But a recital of reasons is not necessary if the order eventually passed by the Court is not one that the judgment-debtor should be detained in a civil prison. As the learned Subordinate Judge accepted the undertaking of the petitioner to file an insolvency petition, he released him and dismissed the execution petition. So the judgment-debtor has nothing to complain of.
3. There is no need for me to attempt to anticipate what steps the learned Subordinate Judge will take if the judgment-debtor does not file an insolvency petition. If the present applications are intended to meet the contingency of a later order committing the judgment-debtor to jail, they are premature.
4. The petitions are dismissed with costs (one set).