ORDER
A. Hanumanthu, J.
1. This revision is directed against the order dated 11-11-1991 passed in E.P. No. 124/90 in O.S. No. 15/87 on the file of the Principal Subordinate Judge, Tenali.
2. The revision petitioners are the judgment-debtors 2 to 5 and the respondent herein is the decree-holder in E.P. No. 124/90. In execution of the decree in O.S. No. 15/87, the respondent filed E.P. No. 124/90 for arrest of the judgment-debtors after issuing notices under Order 21 Rule 37 C.P.C. The notice under Order 21 Rule 37 C.P.C. was issued to the judgment-debtors 2 to 5, but they did not appear in Court in pursuance to the said notice on 11-11-1991. Hence, they were set ex parte and arrest of the judgment-debtors 2 to 5 was ordered. Assailing that order, the judgment-debtors have come up with this revision petition.
3. Heard the learned Counsel for the petitioners and the respondent, and perused the lower Court order.
4. The learned Counsel for the petitioners submits that the impugned order directing the arrest of the judgment-debtors is violative of both the letter and spirt of Section 51 and Order 21 Rule 37 C.P.C. and the learned Subordinate Judge has not given any reasons for directing the arrest of the judgment- debtors. The learned Counsel for the respondent-decree-holder relying on the decision in “K.N. Gangappa and Anr. v. A.M. Subramaniyam Mudaliar”, contends the inhibition contained in Section 51 proviso applies only to an order for detention in prison and not to an order for arrest of a judgment-debtor.
5. On 11-11-1991, the learned Subordinate Judge passed a cryptic order which reads as follows:
“J-D.2 to J.D.5 are called absent and set ex parte. Arrest J.D.2 to J.D.5 by 29-11-1991.”
The learned Subordinate Judge has not given any reasons for directing arrest of the judgment-debtors. The crucial question to be considered in this revision petition is whether the order of arrest of the petitioners for the purpose of committing them in civil prison as ordered by the lower Court in execution of (the decree for) payment of money is in consonance with the provisions of Section 51 of C.P.C. which reads as follows:
“Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-
(a) xxxx xxxx (b) xxxx xxxx (c) by arrest and detention in prison for such period not exceeding the period specified in Section 58 where arrest and detention is permissible under that Section; (d) xxxx xxxx (e) xxxx xxxx
Provided 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-
(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 any 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 refuses or neglects or has 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.
Explanation:- In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account 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.”
A reading of the provisions of the above Section makes it clear that the arrest and detention of a J.Dr. in civil prison in execution of a decree for payment of money is not a matter to be resorted to lightly. The scheme of Section 51, C.P.C. is to ensure that sufficient reasons exist for making an order of arrest and detention of a J.Dr. in civil prison in execution proceedings. Moreover, it is also evident that in every case of non-payment of decretal amount, a J.Dr. is not liable to be arrested and detained in civil prison unless the case falls within one of the clauses of the proviso to Section 51 C.P.C. To recover debts by the procedure of putting one in prison is flagrantly violative of Article 21 of the Constitution unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and wilful neglect and refusal to pay the decree-debt. The provisions under Section 51 C.P.C. read with Rule 37 of Order and (sic. are) concerned in the interest of the protection of the liberty and freedom of the J.Dr. which the Code considers to be of paramount importance. Any provision of law pertaining to the protection of such liberty and freedom of a citizen are (sic. is) to be construed as mandatory, violation of which, invariably results in vitiating the consequential order. The Court is obliged to issue a warrant for the arrest of a J.Dr. only when there is a positive finding that the J.Dr. though having means to pay the decree debt had wilfully neglected and refused to pay the same. In the absence of such a positive finding, it would be extremely difficult to visualise that a person could be put behind the bars in pursuance of a civil proceeding by any Court of law. I am fortified in my reasoning by a decision the Supreme Court in “Jolly George Verghese v. Bank of Cochin“, AIR 1980 SC 471.
6. In the instant case, as seen from the impugned order, the lower Court ordered arrest of the J.Drs. after setting them ex parte on their failure to appear in Court in pursuance of the notice issued under Order 21 Rule 37 C.P.C. The learned Subordinate Judge has not addressed himself for verification with regard to the means of the J.Drs. to pay the decree debt and whether they wilfully neglected and refused to pay the debt though having means to pay the same. No enquiry was held and no positive finding was given on this aspect, Hence, the impugned order is liable to be set aside.
7. In the decision in “K.N. Gangappa and Anr. v. A.M. Subramaniyam Mudaliar” (1st cited supra) quoted by the learned Counsel for the respondent, the Court, acting on the affidavit filed by the D. Hr., found that the J. Drs. have got sufficient means and ordered arrest even though no enquiry was conducted before ordering arrest of the J. Drs. But, in the instant case, there is nothing in the impugned order that the learned Subordinate Judge perused the affidavit of the D. Hrs. and came to the conclusion that the J.Drs. have means to pay the decree debt. (Though) That decision has no application to the facts in this case. Further, a Division Bench of this Court in “R.V.J. Sastry v. Bank of India”, 1978 (2) ALT 335 = 1978 (2) APLJ 217 (1978 (2) APLJ 18 (SN) held that even in a case where the J.Drs. do not appear in obedience to a Court’s notice, the Court is obliged to issue a warrant for his arrest only when the decree-holder so requires. The learned Subordinate Judge has committed error by ordering arrest of the J. Drs. without giving a positive finding with regard to the means of the J. Drs. to pay the decree debt and their wilful negligence and refusal to pay the same.
8. In the result, the Civil Revision Petition is allowed. The impugned order of the learned Subordinate Judge is set aside. The learned Subordinate Judge is directed to dispose of the matter according to law and in the light of the observations made above after giving opportunity to both parties to produce evidence on their behalf. Parties are directed to bear their costs in this petition.