B KPUTTARAMIAH Vs. HAJEE IBRAHIM ESSACK AND SONS

JUDGEMENT

(1.) The first judgment-debtor in Execution Case No. 115 of 1954, on the file of the learned Second Additional District Judge, Bangalore, is the appellant in this Court. He has been ordered to be arrested as per the order dated 13-6-1955. This order is the subject-matter of the present appeal. The only ground urged is that there has not been due compliance of Section 51, C. P. C. The appellant complains that the Court below has not found that the Decree-holder has established any of the requirements set out in Section 51 and without such a finding, the order of arrest is not sustainable, On the other hand the learned counsel for the decree-holder (respondent) contends that the order that has been passed is one of arrest and us such Section 51, C. P. C., is inapplicable. According to him, the relevant provisions are Rules 37 and 40 of Order XXI, C. P. C. He urges that Section 51 comes into play only when an order of detention is to be passed. To properly understand the respective contentions, it is desirable to set out the relevant provisions of law.

(2.) Rule 37 of Order XXI reads as follows;

(3.) In the instant case, it is not denied that the necessary notice under Rule 37 had been issued to the judgment-debtor before ordering his arrest. Sub-rules (1) and (2) of Rule 40 provide for the arrest and the custody of the judgment-debtor, whereas Sub-rule (3) of Rule 40 deals with the detention of the judgment-debtor in the Civil prison. It is only when an order under Sub-rule (3) of H. 40 has to be made, it will have to be made subject to the provisions' of Section 51. There is no need to comply with the requirements of Section 51 while acting under either Rule 37 or under Sub-rules (1) and (2) of Rule 40. Having examined these rules we may now usefully proceed to examine Section 51, C. P. C. But before doing so, we may mention that the decree under execution is a money decree and the relief prayed for is by arrest and detention of the judgment-debtor in the civil prison. The relief prayed for falls under Clause (c) of Section 51. In this case we are concerned with the proviso to Section 51 (1), C. P. C. It is as follows: