- (1.)The revision petition by the judgment-debtor is directed against an order of the Principal District Munsif, Coimbatore by which he summarily directed the judgment-debtor to be arrested. Undoubtedly, there is an execution proceeding which had been initiated by the decree-holder for recovery of a total amount of Rs.3,118 and costs of Rs.451.10. The decree is also quite old, having been passed in 1973. It appears that at one stage the judgment-debtor sought the benefit of Tamil Nadu Act 13 of 1980, but his application for abatement of the execution proceedings in view of section 4 of Act 13 of 1980 came to be dismissed.
(2.)On 23rd December, 1980 the decree-holder filed an application for execution and sought an order of arrest of the judgment-debtor under Order 21, rule 37, read with section 55 of the Code of Civil Procedure. The execution application merely stated that the judgment-debtor should be arrested under Order" 21, rule 37 read with section 55 of the Code of Civil Procedure. On this application the Principal District Munsif made an order that since the application for abatement of the execution petition under section 4 of Act XIII of 1980 was dismissed, the judgment-debtor "be and are hereby ordered to be arrested". This order suffers from very serious infirmities inasmuch as it discloses a total -non-application of mind to the provisions of sections 51 and 55 and Order 21, rules 37, 39 and 40 of the Code Civil Procedure. Section 51 of the Code of Civil Procedure which deals with procedure in execution, in the proviso thereto, clearly lays down 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, for reasons recorded in writing, is satisfied about the circumstances specified in the proviso. Under clause (a) in the proviso, the court has to be satisfied that the judgment-debtor with the object or interest 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 has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property. If these conditions are shown to exist, then the Court's power to order that the judgment-debtor should be committed to prison can be exercised. Such power can also be exercised if the judgment-debtor has or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same as provided by Clause (b) of the proviso in section 51 or if the decree is for a sum for which the judgment-debtor was found in a fiduciary capacity to account as provided in Clause (c) of the said proviso. There is an Explanation to the proviso to section 51 which lays down that in the calculation of the means of the judgment-debtor for the purpose of clause (b) any property which, by or under any law or custom having the force of law for the time being in force is exempt from attachment in execution of the decree is to be left out of account. A detailed procedure as to the nature of the enquiry which the executing court has to make is specified under Order 21, rules 37,38,39 and 40. The amendment made by the Madras High Court under Order 21, rule 39(1) shows that no judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder pays into court such sum as the judge thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the court and for the payment of charges of conveyance of the judgment-debtor and of the amin or process-server who executes the warrant of arrest by bus, train or otherwise whichever is available from the place of arrest to the court-house. Sub-rule (2) of rule 39 also provides that the court has to fix for the subsistence of the judgment-debtor when he is committed to civil prison in execution of a decree and such subsistence amount is a monthly allowance to which he may be entitled according to the scales fixed under section 57, or where no such scales have been fixed, the court has to decide upon the monthly allowance at an amount which it considers sufficient with reference to the class to which the judgment-debtor belongs. To say the least, the order made by the learned Principal District Munsif is in callous disregard of the statutory provisions which have been made in the Code of Civil Procedure regulating the power of the executing court to order arrest of the judgment-debtor.
(3.)Accordingly, the order of the learned Principal District Munsif dated 23rd June, 1984 directing the judgment-debtor to be arrested is set aside and the execution petition stands rejected. Since there is no appearance on behalf of the decree-holder there will be no order as to costs.