V. Balasubrahmanyan, J.
1. This revision petition has been brought by a judgment-debtor against an order passed by the executing Court ordering his arrest and detention in the civil prison in execution of a money decree in which the balance amount payable is Rs. 4,905.
2. The executing Court ordered his arrest, I am disposed to allow this civil revision petition and set aside that order for the reasons given below. The decree in this case was passed on 21st December, 1977. The application for execution for the arrest of the judgment-debtor was filed by the decree-holder on 23rd February, 1978. In the affidavit in support of his petition, the decree-holder alleged that although the judgment-debtor was possessed of a house, lands and other properties and Was also in receipt of a good income, he had not cared to pay the decree amount, all with a view to cause loss to the decree-holder. On receipt of this execution petition, the Court gave notice to the judgment-debtor on 3rd March, 1978. After service, the judgment-debtor entered appearance and requested the Court to grant time for filing his counter-affidavit. At the adjourned hearing, however, the judgment-debtor's learned Counsel did not file a counter-affidavit, but prayed for a month's time for payment. On 5th August, 1978, a sum of Rs. 300 was paid by the judgment-debtor and part-satisfaction was recorded by the Court, and the matter adjourned. Again, on 30th August, 1978, another payment of Rs. 200 made by the judgment-debtor was recorded. Having entered part- satisfaction of this amount, the executing Court proceeded to pass the following order : 'This is not substantial payment. The balance is Rs. 5,500 and J.D. has means to pay. Arrest and detain J.D. by 16/9'. It is this order which the judgment-debtor has brought before this Court in revision.
3. Learned Counsel for the petitioner submitted that the Court below had not followed the procedure prescribed under Order 21, Rule 40, Civil Procedure Code. He further submitted that even otherwise there was no finding at all by the executing Court under Clauses (a), (b) or (c) of the proviso to Section 51 of the Code. He accordingly, submitted that the order passed by the learned Judge for the arrest and detention in civil prison of the judgment-debtor was illegal and without jurisdiction.
4. I must accept this contention as wholly well-founded. The proviso to Section 51 of the Code requires 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 is satisfied, and records its reasons for such satisfaction that
(i) the judgment-debtor with the object of obstructing or delaying the execution of the decree is either likely to abscond or leave the local limits of the jurisdiction of the Court or had dishonestly transferred, or
(ii) has concealed or removed any part of his property or committed any mala fide act in relation to his property, or
(iii) the judgment-debtor having means to pay the amount of the decree or a substantial part thereof, yet refuses, or neglects to pay the same.
5. The enquiry, which is contemplated under Order 21, Rule 40, Civil Procedure Code, begins subsequent to the notice under Order 21, Rule 37 calling upon the judgment-debtor to show cause why he should not be arrested in execution of a decree for money against him. The procedure prescribed under Order 21, Rule 40, Civil Procedure Code, is that when a judgment-debtor appears before the Court in obedience to a notice issued under Rule 37, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by the decree-holder in support of his application for execution of the decree by arrest. After hearing the decree-holder, the Court shall then give the judgment-debtor as opportunity of showing cause why he should not be committed to the civil prison. Under Rule 40(3), it is only upon the conclusion of an enquiry in the manner aforesaid that the executing Court may make an order for the detention of the judgment-debtor in the civil prison, and even that order has got to be in complicance with the requirements of Section 51 of the Code.
6. In this case, the record of the proceedings in the execution petition, which I have already summarised shows that while the Court had adjourned the matter from time to time to enable the judgment-debtor either to file a counter-affidavit or to make part-payments towards the decree amount, the Court had not set down any date for an enquiry into the execution petition. The record does not show that the decree-holder was called upon to produce evidence in support of his petition or that he did in fact produce evidence in that regard. Nor Was the judgment-debtor given any opportunity whatever to adduce evidence in rebuttal. Apart from the Court's disregard of the procedure under Order 21, Rule 40, Civil Procedure Code, the order under revision does not disclose a proper reason for ordering the judgment-debtor's arrest. After recording the payments of Rs. 300 and Rs. 200 in two instalments, the Court characterised these payments as not substantial payments in view of the balance remaining unpaid. The Court, no doubt, observed that the judgment-debtor has means to pay. But that by itself is not enough to enable an executing Court to order the arrest of the judgment-debtor. Under Clause (b) of the proviso to Section 51 of the Code, the Court must be satisfied, for reasons to be recorded by it in writing, that the judgment-debtor has not only the means to pay the amount of the decree or a substantial part thereof, but it must also be in a position to record a finding to the effect that possessing such means, the judgment-debtor yet refuses or neglects or has refused or neglected to pay the same. On the facts relating to part payments recorded by the executing Court itself in this case, it cannot be said that the judgment-debtor refuses or neglects to pay the amount of the decree. On the contrary, he has been paying some money every time although the payment may not be regarded as substantial. Only by ignoring such payments, can any Court say that the judgment-debtor had refused or neglected to pay the decree amount? In this case, the Court has not so much whispered as to what it thinks of the conduct of the judgment-debtor, whether he has refused or neglected to pay the amount. All that the Court said was that he has the means to pay. For this remark no evidence has been relied upon, for the simple reason that no enquiry had been conducted by the Court. It is true that in the affidavit in support of the petition, the decree holder had mentioned that the judgment-debtor has a house and lands and other possessions. But that is not enough under the law. It is the duty of the Court, under Order 21, Rule 40, Civil Procedure Code, to have called upon the decree-holder to establish his allegation by adducing proof. Of this, there is none in this case.
7. I am, therefore, satisfied that the order passed by the executing Court is illegal, as well as procedurally irregular. The order-is accordingly set aside and the execution petition is dismissed. The civil revision petition is, therefore, allowed with costs here and in the Court below.