1. The validity of the order of arrest is challenged by the judgment-debtor. The order is one word one: 'Arrest'. The contention is that under Section 51, C. P. Code, before an order of arrest and detention in prison is made the Court should give an opportunity to the judgment-debtor for showing cause as to why he should not be committed to prison, and the Court should, for reasons recorded in writing, be satisfied on any of the requirements prescribed in clause a, b or c of the proviso. Rules 37 and 40 of Order XXI C. P. Code should also be referred to in this connection. Order XXI, Rule 37(1) provides that where an application is for arrest and detention in civil prison of a judgment-debtor who is liable to be arrested, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to civil prison. The proviso states that such notice shall not be necessary if the Court is satisfied, by an affidavit or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court. Rule 40 states that 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 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 civil prison. After reading Section 51 and Rule 37 and 40 of Order XXI, C. P. Code, it appears that the proviso to Section 51 is applicable and the Court is bound to record in writing its satisfaction of one of the conditions prescribed in the section, only when it is committing the person to prison, and not when it is issuing a warrant of arrest. This view is supported by the wording of Rule 40 of Order XXI, C. P. Code, where it provides that when a person 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 payment of money, the Court shall proceed to hear the decree-holder and take evidence and then give the judgment-debtor an opportunity of showing cause why he should not be committed to civil prison after the judgment-debtor appears in obedience to a notice under Rule 37 or is brought before the Court after being arrested in execution of the decree. The requirement prescribed under the proviso to Section 51 is not applicable before an order or arrest is made, but is applicable only when the person is brought before the Court, or arrested and produced before the Court, and the Court is ordering the committal of the judgment-debtor to civil prison.
2. Reference was made to the decisions in Krishnaswami Iyengar v. Vedavalli Ammal, : (1957)2MLJ588 ; Muthu Pathar v. Mani Rao, 69 MLW 299 : AIR 1956 Mad 580 and Kunhiraman v. Madhavan Nair, : AIR1957Mad761 . Though the decisions cited support the contention of the learned counsel for the petitioner, that the requirements prescribed under the proviso to Section 51 should be satisfied before an order or arrest was made, the contention now put forward by the learned counsel for the petitioner was not put forward and therefore, the decisions cannot be held to be binding so far as an order of arrest is concerned.
3. One other point was taken that the notice of arrest was not given to the judgment-debtor and therefore, the requirement under Order XXI, Rule 37 was not satisfied. But it is seen that the decree-holder filed a petition for dispensing with the notice and the Court below dispensed with the notice stating that for the reasons stated in the affidavit the notice should be dispensed with to the judgment-debtor and the petition was allowed. This was under the proviso to Rule 37 of Order XXI, which empowers the Court to dispense with the notice. On the facts, therefore, the order or arrest is maintainable.
4. Though the order of arrest is found to be legal, I think this is a fit case where the judgment-debtor should be given a chance to make the payment. The decree amount, after deducting the payments already made, comes to Rs. 3410/-. The judgment-debtor is given six weeks time to pay half the decree amount and the balance after the expiry of another six weeks. On the judgment-debtor's failure to comply with either of these conditions, the decree-holder will be entitled to have the judgment-debtor arrested and brought before the Court for enquiry as to whether he should be committed to civil prison. The petition is allowed with costs.