Sharma, J. - (1.) THIS is a second appeal by the judgment debtor Mahadev Prasad against the order of the learned Dist. Judge, Jaipur City. The respondent Raj Guru Pt. Gopinath obtained a money decree against the appellant in instalments of Rs. 500/- per year and a charge was created over a certain house. THIS house was sold under the decree but the proceeds of the sale proved insufficient. The decree-holder therefore, filed an application for execution for the recovery of the balance by the arrest of the judgment-debtor. The judgment-debtor objected that he was an agriculturist and according to circular No. 4 dated the 28th Feb. 1931 of the Chief Court of Jaipur he could not be arrested under the decree. He further objected that the decree was not a personal decree and could not, therefore, be executed against his person. He also objected that he had not been guilty of any bad faith with his property irk order to avoid the decree, nor h|ad he any means to satisfy the decree. He was, therefore, not liable to arrest.
(2.) THE learned Civil Judge, Jaipur City, held that the decree could be executed against the person of the judgment-debtor but holding that he was an agriculturist it was held that he could not be arrested. The decree-holder went in appeal to the Court of the Dist. Judge, Jaipur City, who reversed the finding of the learned Civil Judge and held that the Judgment-debtor was not an agriculturist, and that there was no law in force in Jaipur, according to which an agriculturist could not be arrested. He agreed with the learned Civil Judge that the decree was a personal decree and could be executed against the person of the judgment-debtor. Allowing the appeal the learned District Judge sent the case back to the first court for proceeding according to law. Against this judgment-debtor has come in appeal to this court. I It has been argued on behalf of the judgment- debtor that the learned District Judge was wrong in holding that the Judgment-debtor was not an agriculturist. It was further argued that under circular No. 4 of 28th Feb. 1931 Of the late Chief Court of Jaipur an agriculturist could not be arrested in execution of a money decree. It was further argued that the decree was not a personal decree and could not be executed against the person of the judgment-debtor. It was finally argued that a judgment-debtor could be arrested only when the conditions given in sec. 51 C. P. C. are satisfied, and as there is,no finding of the lower courts that those conditions were satisfied, the judgment-debtor could not be arrested. On behalf of the respondent it has been argued that the question that the applicant is not an agriculturist is a finding of fact and could not be challenged in second appeal. It was further argued that the decree was a personal decree and could be executed against the person of the judgment-debtor. As regards the question that the condition under sec. 51 C. P. C. were not satisfied, it was argued that this was not pressed before the lower courts, nor has it been taken in the grounds of appeal before this court. So far as the question whether the appellant is an agriculturist is concerned, I have no reason to interfere with the finding of the learned District Judge. It is a finding of fact and the learned appellate Judge was not satisfied from the evidence on record that the appellant has proved that his main source of livelihood was agriculture. Under these circumstances, no question arises as to whether the circular No. 4 of 28th Feb. 1931 of the late Chief Court has any force or not. I am also in agreement with both the lower courts that the decree is a personal decree and it can be executed against the person of the judgment-debtor. It may be that for the satisfaction of the decree-holder charge was created on some property of the judgment-debtor, but this does not make the decree a mortgage decree. It remains a decree for the recovery of the money all the same. The property charged has now been sold and its sale proceeds were insufficient to satisfy the decretal amount. The decree-holder has a perfect right to proceed against the other property and person of the judgment-debtor. The only question, that remains, is whether the conditions for execution of a decree by the arrest of the judg-ment-debtor given in sec. 51, Jaipur Civil Procedure Code, are satisfied? There is no finding of either of the courts below on this point. As a matter of fact, the first court, having found that the judgment-debtor was an agriculturist and the decree could not be executed by his arrest, it had no necessity to go into the question whether by virtue of sec. 51 Jaipur C. Pr. Code the appellant was not liable to arrest. Before the first appellate court also the attention was focused upon the question whether the appel-lant was an agriculturist and could be exempted from arrest under the above mentioned Circular of the Jaipur Chief Court. The learned Dist. Judge, too, therefore, did not pay any attention to the provisions of sec. 51 of Jaipur C. Pr. Code. Under sec. 51, a judgment-debtor can be detained in a civil prison only when, after an opportunity of showing cause why he should not be committed to prison, the court, for reasons recorded in writing, is satisfied: (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree, (i) is likely to abscond or leave the local limits of the jurisdiction of the court, or (ii) 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 other act of bad faith in relation to his property, or (b) that 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 refused or neglected to pay the same, or (c) that the decree is for a sum for which the Judgment-debtor was bound in a fiduciary capacity to account. No finding has been given by the learned lower courts on this point and unless such a finding is recorded, court would not be justified in sending the judgment-debtor to civil prison. It was argued that no objection was taken in the grounds of appeal that the judgment-debtor was not liable to arrest unless the conditions given in sec. 51 C. P. C. are satisfied and therefore he could not be heard on that point although be did not take any specific ground in that respect, yet he has challenged the order of the lower appellate court on the ground that it has failed to appreciate the correct law on the point. Both the parties were heard on this point, which is entirely a point of law, and the learned counsel for the decree holder was unable to satisfy me that the lower courts had recorded any finding on the question raised by sec. 51 C. P. C. I am, therefore unable to sustain the order of the learned Dist. Judge. The appeal is allowed, the order of the learned Dist. Judge is set aside and the case is sent to the first court for decision after complying with the provisions of sec. 51 of the Jaipur C. Pr. Code. The costs of this appeal shall abide the result of the case after this remand. .;