S. Swamikkannu, J.
1. This revision petition raises a. very interesting question of law which, of course, arises in turn out of the consideration whether the order of the Court below, which is the subject-matter of this revision, petition is revisable under Section 115, Civil Procedure Code. Mr. R. Chandrasekaran, learned Counsel for the petitioner contends that the lower Court had not taken into consideration whether the judgment-debtor has got sufficient means to pay the debt in. accordance with the provisions of Section 51 Civil Procedure Code, as well as Order 21, Rules 37, 38 and 40, Civil Procedure Code, and as such, this order under revision is liable to be revised by this Court. On the other hand, Mr. G. Krishnan, learned Counsel for the respondent submits that it is not as if the judgment-debtor has not gone into the box and deposed about the situations that are prevailingat the time of the hearing of R.E.P. No. 266 of 1980. The order made in the above petition, i.e., R.E.P. No. 266. of 1980 is now the subject-matter of this revision. In fact, the learned Counsel for the respondent had himself admitted that he has got a share in a property to which he had made a claim in a suit that has been pending in the Sub-Court, Tiruvannamalai, and this is quite adequate to satisfy an order as prayed for under the provisions of Order 21, Rules 37 and 38, Civil Procedure Code under which provision the petition was filed by the decree-holder for the realisation of the decree amount by arrest and detention of the petitioner herein. In this regard, the learned Counsel for the respondent refers to a decision in K.P. Mohamed Ibrahim v. State Bank of Travancore, Trivandrum : AIR1964Mad233 for the following proposition:
It is not correct to say that the word 'means' occurring in clause (b) to proviso to Section 51 should be taken as equivalent to cash; 'Means' there only mean realisable assets, and where the judgment-debtor has got sufficient assets from out of which the necessary moneys can be realised to pay up the decree amount, he will not be exempted by the provisions of Section 51 from being proceeded against personally by detention in prison for the realisation of the amount due under the decree.
2. The learned Counsel for the respondent further refers to the observations of his lordship Section Ramachandra Iyer, C.J., at page 234 and they are as follows:
In this appeal against the order of the executing Court, Mr. R Gopalaswami Aiyangar first contended that, as there has been no refusal by the appellant to pay the moneys due under the decree the execution application was 'premature'. We are, however, unable to agree with that contention. After the filing of the execution, the appellant filed a counter affidavit, objecting to his liability to pay the decree amount, as according to him, the execution petition was premature. If the execution application were held to be maintainable, that would certainly amount to a refusal to pay.
It was next argued that, as the appellant had not the means to pay the money due under the decree, no personal execution should be levied against him. It is admitted that the appellant is in possession of considerable properties which would easily enable him to pay off the decree. But what is argued is that the word 'means' occurring in Section 51 should be taken as equivalent to cash, and as the appellant says that there was no cash available with him, the order for arrest should not have been made. We are unable to accept that argument either. 'Means' occurring in Section 51 can only 'mean' realisable assets, and, as there is no doubt that the appellant has got sufficient assets from out of whicj the necessary moneys can be realised to pay up the decree amount, he will not be exempted by the provisions of Section 51 from being proceeded against personally for the realization of the amount due under the decree
But the more substantial point that has been urged on behalf of the appellant is whether the execution application is maintainable of whether it premature. From what we have stated above, it will be clear that the personal decree which is passed against the second defendant would become available for execution only after the properties of the first judgment-debtor had been exhausted. Or when otherwise they could not be brought to sale. In that view, the present excution application must be held to be premature. The remedy of the decree-holder will be first to proceed against the mortagaged properties 'and exhaust them, and, if there is a balance left, the Bank will have to apply for a personal decree against the virtue of the present preliminary decree, enforce that remedy against the second judgment-debtor also personally concurrently therewith
But Mr. Ratan, appearing for the Bank, has referred us to the judgment in the case to show that it does not contemplate the decree-holder waiting for excution of the decree as against for second judgment-debtor till the properties are exhausted. Issues 1 and 3 in the suit related to the question whether the second defendant was only a surety and whether he was only if the decree amount were not realised from the first defendant and his properties. It was evidently this request that was acceded to in the judgment which derected a separate decree being being passed against the second defendant without any direcdtion that the decree against the secondefendant should concurrently suvsist with the moratgage decree against the first defendant
On the other hand, the learned Counsel for the petitioner refers to a decision in Anama Gounder v. A.G. Ponnusami (1981) 94 L.W. 683 for the following proposition:
A reference to Section 51, Civil Procedure Code, would show that it is the bounden duty of the execution Court to satisfy itself that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of decree or some substantial part thereof, but all the same refuses or neglects or has refused or neglected to pay the same. Section 51 insists that the Court's satisfaction must be entered for good reasons which are to be recorded in writing in the order. The provisions of Section 51 do not depend for their implementation on the attitude which the judgment-debtor might take when notice goes to him in the execution petition.
Whether or not the judgment-debtor resists the execution petition and whether or not the judgment-debtor denies that he has means the Court cannot shirk the responsibility under the Code of instituting an enquiry to find out whether the judgment-debtor has the requisite means to pay and yet wilfully refuses or neglects to pay the amount. Where a debtor is sought to be arrested and put in civil prison for nonpayment of a decree-debt, the execution Court cannot rely for the support of its order entirely on the state of the pleadings of the judgment-debtor.
Order 21, Rule 40(1) further shows that even where the decree-holder produces evidence as to the means of the judgment-debtor, still it would be essential for the Court to give the judgment-debtor, an opportunity of showing cause as to why he should not be committed to civil prison. This opportunity is over and above the opportunity aforesaid by the service of notice of the execution petition.
3. In the above decision of this Court, the decision rendered by the Supreme Court in Jolly George Varghese v. The Bank of Cochin : 2SCR913 is also referred to. In that decision Krishnan Iyer, J., had shown how gruesome and obnoxious is the remedy of incarcerating a debtor for an unpaid debt or under modern conditions and in the context of Human Rights. The said decision of the Supreme Court also reveals to us that while learned Judges, who have to administer old laws may have to guard themselves against over-reaction to modern trends in social jurisprudence, they may at least observe the requirements of the law in a matter such as arrest and detention in civil prison of judgment-debtor.
4. Bearing in mind the observations of the Supreme Court in the above decision in Jolly George Varghese v. The Bank of Cochin : 2SCR913 this Court considers that even a minimum adherence to the requirement of the Court of the relevant provisions of the Code had not been complied with in the present case by the lower Court and, as such, the order becomes revisable. In other words, this revision petition is to be allowed, because there is absolutely no material available on record to come to a definite conclusion that the petitioner herein has got sufficient means to discharge the debt, for which the respondent herein wanted the remedy of arrest. It is the fundamental principle of any jurisprudence that a Court, which had been armed with such an extraordinary power of arrest for the debt incurred by a debtor, especially when such a prayer is made by the creditor, should take into consideration and apply its mind to the several circumstances that are placed and come to a definite conclusion as to whether the sufficiency of the means or satisfying the decree debt has been established or not. This is actually what has been laid down by the Supreme Court in Jolly George Varghese v. The Bank of Cochin : 2SCR913 which has been followed by this Court in Anama Gounder v. A.C. Ponnuswami (1981) 94 L.W. 683
5. Nothing has been elicited in the cross-examination of R.W. 1, Sathyamurthy, the judgment-debtor which will be helpful for upholding the contention raised by the learned Counsel that the admission on the' part of the petitioner herein as R.W. 1 before the lower Court is sufficient to come to the conclusion that he had means for satisfying the debt as contemplated by the provision8 of Section 51, Civil Procedure Code, or by the [provisions of Order 21, Rules 37 and 38 read With Rule 40 Civil Procedure Code. It has not been elicited in the cross-examination as to what interest he has got in the property in which he has admittedly made a claim. (An admission of a claim with respect to a share in an immoveable property is not enough to hold that the person is liable to be incarcerated under the above provision. The only answer that this Court could give at this juncture on the evidence available on record is in the negative, because Section 51. Civil Procedure Code, clearly lays down that it is the boundan duty of the execution Court to satisfy itself that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of decree or some substantial part thereof, but all the same refuses or neglects or has refused or neglected to pay the same. What is more, Section 51 further provides that the Court's satisfaction must be entered for good reasons which are to be recorded in writing in the order. The order under revision is benefit of such a conclusion on reasons. Therefore, this is a fit and proper order to be revised undes Section 115 Civil Procedure Code, and it is hereby revised.
6. This Civil Revision Petition is allowed. Under the circumstances of the case, there will be no order as to costs.