JUDGMENT MItter, J. - This appeal is against an order directing the arrest of the judgment-debtor. The Respondent obtained a decree for money against the Appellant and his son on the 28th of May, 1934, for a sum of Rs. 1,715. This decree was put in execution against the Appellant in 1937. In the application for execution the decree-holder prayed for the arrest of the Appellant. A notice upon the Appellant was issued by the Court requiring him to show cause why he should not be arrested. In the proceedings evidence was led and the Court had to consider whether the Appellant had the means to pay the amount of the decree or some substantial part thereof and had refused or neglected to pay the same, because the application for execution was filed after Act XXI of 1936 had come into force. The material portion of sec. 51 of the CPC as amended by that Act runs as follows: Provided that where the decree is for the payment of money execution by detention in prison shall not be ordered unless the Court for reasons recorded in writing is satisfied, (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 neglects or has refused or neglected to pay the same. Explanation:--"In the calculation of the means of the judgment-debtor for the purpose of cl. (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." The most material point of time for consideration of the question as to whether the judgment-debtor has the means to pay the amount of the decree or some substantial part thereof, is in this case the time when the application for execution was put in. Cl. (6) of the Proviso to sec. 51 contemplates, in my judgment, two things, namely that the judgment-debtor has the means to pay the amount of the decree or has had since the date of the decree the means to pay. Cl. (6) of the Proviso to sec. 51 contemplates, in my judgment, two things, namely that the judgment-debtor has the means to pay the amount of the decree or has had since the date of the decree the means to pay. The last-mentioned clause obviously contemplates the case where the judgment-debtor had means to pay the amount of the decree at or after the time when the decree was passed but has since then been reduced financially. In considering the case, the learned Munsif with whom the learned District Judge has agreed, has recorded the following findings: that the judgment-debtor's pension was Rs. 71-14-0 a month, (2) that he had a dwelling-house at Krishnagar, but that was under attachment in execution of another decree, (3) that a part of the dwelling house had been let out to a tenant by the Appellant and that he was getting a rent of Rs. 10 per month from his tenant. After having recorded these findings, the learned Judge makes the observation that the judgment-debtor had at his disposal a sum of Rs. 81 and odd every month being made up of his pension and the monthly rent that he was receiving from his tenant; and he comes to the conclusion that, these facts established that he had the means to pay the decretal amount but had neglected to pay the same. The learned Munsif with whom the learned Judge has agreed is clearly wrong here, for the Explanation to cl. (2) (b) of the Proviso to sec. 51 has been entirely overlooked. The pension of Rs. 71-14-0 which the Appellant was receiving per month cannot be taken into account at all. The property, the dwelling house, was under attachment in execution of another decree; it could not therefore be sold by the Appellant at the material point of time. Assuming for the argument's sake that in the matter of calculation of the means of the judgment-debtor, the value of his small dwelling house can be taken into account, that cannot be in the circumstances of this case, because of the said attachment of which we have already spoken. The finding, therefore, which remains is that the judgment-debtor had apart from his pension which cannot be taken into account at all, a monthly income of Rs 10. The evidence discloses that he is a married man with a wife and children to support. The finding, therefore, which remains is that the judgment-debtor had apart from his pension which cannot be taken into account at all, a monthly income of Rs 10. The evidence discloses that he is a married man with a wife and children to support. Merely because the man has an income of Rs. 10 it cannot be said that he had sufficient means to pay the decretal amount. The necessary expenses of maintaining the life of the debtor and of his dependants must be taken into account and deducted from his income. If after making those deductions, any surplus is left, that surplus can only be taken to be the means of the judgment-debtor for the purpose of paying the decretal amount or a substantial part thereof, within cl (b) of the proviso to sec. 51 of the Code. In this case there has not been any attempt on the part of the lower Courts to find out whether anything would have been left over to the Appellant after meeting the necessary and reasonable expenses of maintenance of himself and his dependants. The evidence in this case is not sufficient to enable the Court to come to a finding that the Appellant had in this case the means to pay the decretal amount. We therefore set aside the orders of the Courts below and hold that the circumstances in this case do not justify the arrest of the Appellant. Khundkar, J. 2. I agree. I desire only to add that in my opinion the Courts below have approached the real question from wrong angle. The finding of the learned Munsif which has been upheld by the learned District Judge is summarised in these terms: In the present case the judgment-debtor is getting pension of Rs. 71-14-0 per mensem. He was also getting Rs. 10 as house rent per month. The decree has remained unpaid since 1934. If he bad the mind and had not been negligent, he might have paid a substantial amount towards the decree by instalments every month, even if it is believed that he bad no other property from which to pay the money. 3. This is not the affirmative finding of the kind required by the section and such as it is, the reasons given are insufficient to support it. 4. 3. This is not the affirmative finding of the kind required by the section and such as it is, the reasons given are insufficient to support it. 4. As pointed out by my learned brother, the admitted facts are that the judgment-debtor's resources consist of a pension of Rs. 71-14-0, which must be excluded from the calculation and an income of Rs. 10 monthly derived as rent from a portion of the dwelling house which was let out to a tenant or tenants. It is not clear whether this house was the property of the judgment-debtor or of his wife. In any case, it is the building in which the judgment-debtor and his family were living and it was at the time of the order appealed against, under attachment at the instance of another judgment-creditor. There is no evidence at all that the judgment-debtor was the owner of any other property or had any other source of income between the date of the decree and the date of the order complained against. 5. In my judgment, the facts established lead to the conclusion that the judgment-debtor had not at the material time the means to pay a substantial part of the decree and the Courts below have entirely failed to appreciate this. The appeal is allowed with costs throughout. The hearing-fee in this Court is assessed at two gold mohurs.