Sarjoo Prasad, C. J. - (1.) THIS is an appeal by the judgment-debtor against the decision of the learned Senior Civil Judge, Ganganagar dated 8th January, 1958, in execution proceedings.
(2.) THE decree-holder respondent took out execution against the judgment-debtor and applied for sale of his immovable property as well as for his arrest and detention in civil prison. THE learned Civil Judge issued a warrant for the attachment of the judgement-debtor's property and also issued a notice against him to show cause why he should not be committed to civil prison. In response to this notice the judgment-debtor appeared and filed objections. One of the objections was that the decree had been adjusted outside the Court; according to its terms he had sent Rs. 1000/- to the decree-holder in July, 1957, but the decree-holder refused to accept it. Keeping this objection in view the learned Civil Judge on 3. 1. 58 ordered the judgment-debtor to deposit Rs. 1000/- within five days. THE judgment-debtor failed to comply with the order. THEreupon the learned Civil Judge passed an order that a warrant for the arrest of the judgment-debtor be issued. It is against this order that the present appeal has been preferred. It is contended on behalf of the appellant that the learned Civil Judge was not justified in issuing a warrant of arrest against him unless his objections had been determined and the court was satisfied about the existence of the circumstances mentioned in sec. 51 of the Code of Civil Procedure. The contention is correct. Before a warrant of arrest of the judgment-debtor can be issued, it is for the decree-holder to satisfy the executing court that the circumstances mentioned in clauses (a) to (c) to the proviso to sec. 51 of the Code are fulfilled. In the execution application no grounds for the arrest and detention of the judgment-debtor were mentioned. The court also had not disposed of the objections of the judgment-debtor and a warrant of arrest was ordered to be issued simply because the judgment-debtor failed to deposit the money as ordered by the court. In our opinion, this could not by itself be a sufficient ground for issuing a warrant of arrest against the judgment-debtor. The provisions of sec. 51, clauses (a) to (c) to the proviso, are mandatory, and must be complied with before a warrant for arrest is issued. Reference may be made to Ch. Harpal Singh vs. Lala Hira Lal (1) wherein it has been observed that - "before the Court can issue a warrant of arrest or a notice to the judgment-debtor under R. 37 of O. 21, it has to see that the judgment-debtor is liable to arrest in pursuance of the application for execution. This means that the nature of the decree should be such that it can be executed by the arrest of the judgment-debtor and that such circumstances exist that an order of arrest can be made against the judgment-debtor, in case the Court was satisfied of those circumstances. Such circumstances are what are mentioned in Cls. (a) to (c) to proviso to sec. 51. The existence of such a circumstance becomes one of the conditions to govern the liability of the judgment-debtor to arrest. This necessarily leads to the conclusion that the existence of such a circumstance should be alleged whether in the execution application itself or in a separate application or affidavit which should accompany the usual tabular execution application. Unless such a circumstance is alleged the Court cannot think of it, and in the absence of it the Court cannot take action under O. 21. R. 37 or issue notice to the judgment-debtor why he should not be arrested. " In this case the learned Civil Judge does not seem to have applied his mind to the provisions of sec 51 of the Code. The judgment-debtor's failure to deposit Rs. 1,000/-within 5 days might be due to different reasons and does not necessarily lead to the inference that since the date of the decree he had the means to pay the amount of the decree or some substantial part thereof and has refused or neglected to pay the same. In our opinion the order under appeal is wrong and cannot be sustained. This appeal is, therefore, allowed and the order of the learned Civil Judge in issuing a warrant for the arrest of the judgment-debtor is set aside. In the circumstances of the case the parties will bear their own costs of this appeal. .;