Judgment :- This civil revision petition by the judgment-debtor-respondent in R.E.P.No.172 1990 on the file of the Subordinate Judge’s Court, Krishnagiri, is against the order 2.12.1991 in the said petition for his arrest. 2. Admittedly, pursuant to notice under O.21, Rule 37, C.P.C. the judgment-debtor before the executing court and filed his counter to the said execution petition for his and detention in prison. No doubt the petitioner was paying several amounts towards decree amount on different dates, on which the execution petition was posted. But, abovesaid date 2.12.1991, he did not appear before court and he did not also pay a Rs.6,000 which he was directed to pay in the preceding hearing date. Therefore, he ex parte by the impugned order and the execution court below, observing ordered arrest by 31.12.1991. 3. The learned counsel for the petitioner submits that this order is against the procedure prescribed under O.21, Rule 40, C.P.C. According to the said provision, when the judgment debtor appears before court, pursuant to notice under O.21, Rule 37, C.P.C., "the court proceed to hear the decree-holder and take all such evidence as may be produced by him support of his application for execution and shall then give the judgment- opportunity of showing cause why he should not be committed to the civil prison." contention of the learned counsel for the petitioner is that the execution court has erred not conforming to this provision by proceeding to hear the decree-holder and take evidence as may be produced by him and then give the petitioner an opportunity of showing cause why he should not be committed to civil prison,, and in ordering straightaway arrest simply stating that by way of affidavit of the decree-holder, the means of the judgment debtor have been proved. As against this contention, the learned counsel for the respondent decree-holder submits that the impugned order could be justified pursuant to what contained in O.21, Rule 40(2), C.P.C. or under O.21, Rule 37(2), C.P.C. 4. But, O.21, Rule 40(2), C.P.C., inter alia only says pending conclusion of enquiry under sub-rule (1), the court may, in its discretion, order the judgment-debtor to be detained in custody of an officer of court. This sub-rule (2) of Rule 40 does not at all provide for order arrest. But, O.21, Rule 40(2), C.P.C., inter alia only says pending conclusion of enquiry under sub-rule (1), the court may, in its discretion, order the judgment-debtor to be detained in custody of an officer of court. This sub-rule (2) of Rule 40 does not at all provide for order arrest. However, it has to be seen whether in the light of what is laid down P.G.R.Padayachi v. Mayavaram Financial Corporation, (1973)2 M.L.J. 93: A.I.R. 1974 Mad. (D.B.), the impugned order could be sustained under O.21, Rule 37(2), C.P.C. O.21, Rule (1) and (2) run as follows: "37. Discretionary power to permit judgment-debtor to show cause against detention prison: (1) Notwithstanding anything in these rules, where an application is for the execution decree for the payment of money by the arrest and detention in the civil prison of judgment-debtor who is liable to be arrested in pursu ance of the application, the court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the court on a day to be specified in the notice and show cause why he should not committed to the civil prison: Provided that such notice shall not be necessary if the court is satisfied, by affidavit, otherwise that, with the object or effect of delaying the execution of the decree, judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the court. (2) Where appearance is not made in obedience to the notice, the court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor". The abovesaid Division Bench case is also similar to the present one. There executing court has notice under 0.21, Rule 37(1), C.P.C. to the judgment-debtor appeared before the court and filed a counter. However, the judgment-debtor offered the decree amount and the executing court gave him time for payment. On the adjourned date, no payment was made and that is why the executing court passed the order of which was challenged before the Division Bench. In that context, the Division Bench the order of arrest, inter alia observing as follows: "This order can only be under 0.21, Rule 37(2). The judgment-debtor had no doubt in court in obedience to the notice sent under Rule 37(1), but on the adjourned defaulted. In that context, the Division Bench the order of arrest, inter alia observing as follows: "This order can only be under 0.21, Rule 37(2). The judgment-debtor had no doubt in court in obedience to the notice sent under Rule 37(1), but on the adjourned defaulted. As already noticed though he had originally offered to pay the decree amount, had failed to pay the same and there is nothing to show that the judgment-debtor was present in the court on the date on which the order now in appeal was passed. Therefore, even though the judgment-debtor had originally appeared in court in obedience to the issued under Rule 37(1) on the date on which the order of arrest was passed, it deemed that the judgment-debtor had disobeyed the notice." Therefore, what the Division Bench has held is that even though the non-appearance judgment-debtor is on an adjourned date of hearing after his original appearance pursuant the notice under 0.21, Rule 37(1), C.P.C, it must be deemed that the judgment- disobeyed the said original notice, by his such non-appearance in a subsequent hearing the present case also even though originally the petitioner-judgment-debtor appeared court and filed counter, he did not appear on the abovesaid date 2.12.1991 and the below passed the abovesaid Order of arrest on the ground that the decree-holder proved that the judgment-debtor had means to pay the decree-amount. Therefore, it be said that the impugned order was without jurisdiction, as it could fall under 0.21, (2), C.P.C. Apart from the abovesaid Division Bench decision in Madhusudan v. A.I.R. 1961 Born. 23 also it was held so. The relevant observation therein is as follows: "It may be that the petitioner was present on the date originally mentioned in the notice actually filed his written statement on that day but the matter was not taken up by the on that day but on a subsequent day. Therefore, it was obligatory upon the petitioner remain present on that date. By his failure to do so he brought upon himself consequences provided by sub-rule (2) of Rule 37 of 0.21." In a similar situation in K.N.Gangappa v. A.M.Subramanya Mudaliar 100 L.W. 306, of arrest was upheld by this court, though the said decision does not particularly 0.21, Rule 37(2), C.P.C. The learned counsel for the petitioner could not cite any contra on this point. At any rate, in view of the fact that the above referred P.G.R.Padayachi v. Mayavaram Financial Corporation, (1973)2 M.L.J. 93: A.I.R. 1974 (D.B.), is a Division Bench judgment, I am bound by it in so far as the aforesaid view it. 5. Thus, even though the executing court has got jurisdiction to pass an order of the above situation, the further question to be decided is whether before passing order of arrest, the court should give reasons therefor and in particular, whether the should give necessarily a finding on any one of the reasons mentioned in the proviso Sec.51, C.P.C. One of the said reasons is that the judgment-debtor has or has had since date of the decree, the means to pay the amount of decree or some substantial part and refuses or neglects or has refused or neglected to pay the same. In the present doubt the impugned order, as already stated, observes that from the affidavit of the holder it is proved that the judgment debtor had the abovesaid means. But, the counsel for the petitioner submits that the executing court cannot merely go by contained in the abovesaid affidavit, but it should hold enquiry as enjoined in 0.21, (1), C.P.C. and come to the necessary conclusion and thereafter may pass an order detention in prison, as well as order of arrest, as prescribed under 0.21, Rule 40(3), The said learned counsel for the petitioner further points out that as on 2.12.1991 admittedly no such enquiry was held and that if at all such enquiry was sought to be made subsequently on 6.3.1992. Therefore, according to the said counsel, the impugned illegal. 0.21, Rule 40(1) and (3) no doubt runs as follows: "40 Proceedings on appearance of judgment-debtor in obedience to Notice or After Arrest. (1) When a judgment-debtor appears before the court in obedience to a notice issued Rule 37, or is brought before the court after being arrested in execution of a decree payment of money the court shall proceed to hear the decree-holder and take all evidence as may be produced by him in support of his application for execution, and then give the judgment-debtor an opportunity of showing cause why he should committed to the civil prison. (3) Upon the conclusion of the inquiry under sub-rule (1) the court may, subject provisions of Sec.51 and to the other provisions of this Code, make an order for detention of the judgment-debtor in the civil prison and shall in that event cause him arrested if he is not already under arrest". However, the learned counsel for the respondent argues that the proviso to Sec.51 will only to order for detention in civil prison and not for order for arrest and that therefore, the case of order for arrest, the court need not give any reason and in particular, the need not find that the judgment-debtor refused or neglected to pay the decree despite having means. In this connection, she cited another ruling in the above referred P.G.R.Padayachi v. Mayavaram Financial Corporation, (1973)2 M.L.J. 93: A.I.R. 1974 (D.B.), itself. In the said Division Bench decision, it has also been held thus: "The provisions of the Code make a distinction between an order of arrest and an order detention. There is nothing in Sec.51 or in any other provisions of the Code that even ordering arrest of the judgment debtor, the executing court should give him an opportunity to show cause against such an order and also record its reasons in support of its order. procedure is contemplated as per the proviso to Sec.51, only before ordering the detention the judgment-debtor in civil prison......Whether the executing court issues a warrant of without notice or whether it issues such a warrant under sub-rule (2) of Rule 37, the does not contemplate the court recording any reason in support of such an order of arrest." 6. But, in view of a subsequent Supreme Court decision, viz., Jolly George Varghese v. of Cochin, (1980)2 S.C.C. 360 , with due respect to the said Bench, I have to hold that said Division decision is no longer good law, in so far as it decides that the judgment means to pay the decree debt need not be gone into before ordering arrest and that matter no reason need be given at all before ordering arrest. In the said Supreme Court in execution of a money decree, a warrant for arrestor was made by the execution the ground that on an earlier occasion also, a similar warrant had been issued. In the said Supreme Court in execution of a money decree, a warrant for arrestor was made by the execution the ground that on an earlier occasion also, a similar warrant had been issued. The Court in a short order, had summarily dismissed the revision filed by the judgment against the order of arrest. In that context the question before the Supreme Court whether the personal freedom of the judgment-debtors could be held in ransom until repayment of the debt and if Sec.51 read with 0.21, Rule 37, C.P.C. did warrant such whether the provision of law was constitutional and in conformity with the inherent dignity human person in the light of Art.11 of the International Covenant on Civil and Political While dealing with this question, the Supreme Court set aside the judgment of the Court and directed the executing court to deeide de novo the means of the judgment to discharge the decree in the light of its interpretation placed on the abovesaid provisions. In this context, the Supreme Court approved a Kerala decision in Canara Bank Ltd., 1969 K.L.T. 927 and the following observation therein: "Art.11 grants immunity from imprisonment to indigent but honest judgment- viewed in this progressive perspective we may examine whether there is any between Sec.51, C.P.C. and Art.11 of the International Covenants quoted above. As indicated by me, this latter provision only interdicts imprisonment if that is sought solely the ground of inability to fulfil the obligation. Sec.51 also declares that if the debtor means to pay he cannot be arrested and detained. If he has and still refuses or neglects honour his obligation or if he commits acts of bad faith, he incurs the liability imprisonment under Sec.51 of the Code, but this does not violate the mandare of However, if he once had the means but now has not or if he has money now on which there are other pressing claims, it is violative of the spirit to arrest and confine him in jail so as to coerce him into payment..... “ [emphasis supplied] Further, after quoting extensively from the abovesaid Kerala decision, the Supreme observes as follows: “Indeed, the Central Law Commission, in Its Fifty-fourth Report, did cognise the while dealing with Sec.51, C.P.C.: The question to be considered is, whether this mode of execution should be retained statute book, particularly in view of the provision in the International Covenant on Political Rights prohibiting imprisonment for a mere non-performance of contract. The Law Commission in its unanimous report, quoted the key passages from the ruling Xavier v Canara Bank Ltd., 1969 K.L.T. 927, 931, 933 referred to above and its ratio. “We agree with this view’ said the Law Commission and adopting that meaning the correct one did not recommend further change on this face of the Section. It is to notice that, interpretationally speaking, the Law Commission accepted the denamice changed circumstances of the debtor: However, if he once had the means but now has not, or if he has money now on which are other pressing claims, it is violative of the spirit of Article 11 to arrest and confine jail so as to coerce him into payment............We concur with the Law Commission construction of Sec.51, C.P.C. It follows that quondam affluence and current without intervening dishonesty or bad faith in liquidating his liability can be consistent Art.11 of the Covenant, because then no detention is permissible under Sec.51, Equally meaningful is the import of Art.21 of the Constitution in the context of imprisonment for non-payment of debts... To be poor, in this land of Daridra Narayana, is no crime recover debts by the procedure of putting one in prison is too flagrantly violative unless there is proof of the minimal fairness of his wilful failure to pay in spite of his means and absence of more terribly pressing claims on his means such as medical treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure inferable from Art.ll of the Covenant. But this is precisely the interpretation we have the proviso to Sec.51, C.P.C. and the lethal blow of Art,21 cannot strike down the as now interpreted.” 7. In this connection I have to point out that the abovesaid Xavier v. Canara Bank 1969K.L.T. 927, which was approved by the Supreme Court was also referred to in referred to P.G.R.Padayachi v. Mayavaram Financial Corporation, (1973)2 M.L.J. 1974 Mad. 1 (D.B.). In this connection I have to point out that the abovesaid Xavier v. Canara Bank 1969K.L.T. 927, which was approved by the Supreme Court was also referred to in referred to P.G.R.Padayachi v. Mayavaram Financial Corporation, (1973)2 M.L.J. 1974 Mad. 1 (D.B.). But, it was held that the said Kerala case is a case of an detention and not merely an order of arrest. But, I may respectfully state that difficult to gather from the above referred to. observations in the Kerala decision observations would apply to a case of arrest also. In fact, as indicated above, the extracted observation refers to order of arrest also along with order of detention. Anyway, view of the above referred to principles enunciated in the above referred to Supreme decision., I am bound to follow the Supreme Court decision, rather than the P.G.R.Padayachi v. Mayavaram Financial Corporation, (1973)2 M.L.J. 93: A.I.R 1974 (D.B.), so far as this aspect is concerned, (though as already indicated, I follow reasoning of P.G.R.Padayachi v. Mayavaram Financial Corporation, (1973)2 M.L.J. 1974 Mad. 1 (D.B.), in relation to the interpretation to be put to 0.21, Rule 37(2), since that reasoning does not conflict with the above referred to Supreme Court decision). may also add that the said Supreme Court decision was also relied on in Alagappan Rajaguru and Co., (1985)1 M.L.J.331 and this court set aside the order of arrest the execution court since it was silent about the means of the judgment-debtor about himself wilfully evading to pay the decree amount. 8. In this connection I may also point out that Londa Abbayee of Pithapuram Suryanaray-ana and others, (1947)1 M.L.J. 246 : A.I.R 1948 Mad. 9(1) J.),B.K.Puttaramiah v. H.I.E. & Sons, A.I.R 1959 Mys. 94 (D.B), Namachivaya Mudaliar P.J.A.Manickavelu, (1972)2 M.L.J. 78: A.I.R. 1972 Mad. 292 and Soundararajan Finance, (1986)1 M.L.J. 214 have also expressed similar view as that of P.G.R.Padayachi Mayavaram Financial Corporation, (1973)2 M.L.J. 93: A.I.R 1974 Mad. 1 (D.B.), the applicability of the proviso to Sec.51 to arrest orders. Therefore, with due respect, I that those decisions also are no longer good law in view of the above referred to Supreme Court decision. On the other hand, I may also point out that there were also other decisions of this court and other courts holdinga contrary view which would accord with the referred to principles enunciated in the Supreme Court decision. On the other hand, I may also point out that there were also other decisions of this court and other courts holdinga contrary view which would accord with the referred to principles enunciated in the Supreme Court decision. Some of them T.Kunhiraman v. Madhavan Nair, (1957)2 M.L.J. 28 . A.I.R. 1957 Mad. 761, N.Ramachandra Iyer v. Thomas Mathai, A.I.R 1966 Ker. 65 and Firm Prabhu Dyal v.Bhondu Mal, A.I.R. Lah. 692. To illustrate in T.Kunhiraman v. Madhavan Nair, (1957)2 M.L.J. 28 : A.I.R. Mad. 761, Pan-chapakesa Ayyer J. has observed thus: "The arrest of a citizen of the Indian Republic is a grave matter involving his fundamental rights Sec.51, C.P.C. has clearly stated, among other things, that a judgment-debtor not be ordered to be arrested unless the court holds that he has had, since the decree, means to pay the amount of the decree or some substantial part thereof and refuses neglects to pay the same. This court has held that the mandatory provisions of C.P.C. must be complied with before arrest is ordered. The lower court does not say its opinion the judgment-debtor has had, since the date of the decree, the means to amount of the decree or some substantial part thereof and has refused or neglected the same. The order of arrest is therefore illegal and has to be set aside. It is phenomenally brief runs: "Respondent called. Absent. Vakil reports no instructions. Arrest by "16.7.1955." reason whatever is given as to why arrest is ordered, and the mandatory provisions Sec.51, C.P.C have been ignored. Mr.Sesha Aiyar says that as the petitioner was reasons need not be given. I am afraid I cannot agree. Under our law ex parte arrest and orders of arrest after contest are exactly on the same footing, and Sec.51, makes no difference whatever between the two cases. Arrest after contest or involves the same painful consequences to the man arrested." In N.Ramachandra Iyer v. Thomas Mathai, A.I.R. 1966 Ker. 65 also, the relevant observation is as follows: "There can be no arrest in execution where no detention is possible any more than there be attachment in execution where no sale is possible. I have never heard of an application for more arrest in execution without detention; and if one were made I should think it forthwith be thrown out for the absurdity that it is. I have never heard of an application for more arrest in execution without detention; and if one were made I should think it forthwith be thrown out for the absurdity that it is. What is to be done with the judgment debtor after he has been arrested if he cannot be detained? Released forthwith? And then same game again and again ad libitum?" 9. It must also be noted that 0.21, Rule 37(1) will apply as per the very words used only where the application is for the execution of a money decree by arrest and detention "a judgment-debtor who is liable to be arrested in pursuance of the application." So, under 0.21, Rule 37(1), C.P.C. cannot be issued to the judgment-debtor, if he is not to be arrested." So far as I could see, while dealing with execution of money decree by and detention, four situations are expressly and specifically mentioned in the Civil Procedure Code, where the execution court could order arrest and, even in these situations it has seen whether the judgment-debtor is actually "liable to be arrested". The first such situation is indicated in the proviso to O.21, Rule 37(1), C.P.C that is, where the court is satisfied affidavit or otherwise that, with the object or effect of delaying the execution of the the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction court. In such a case, without issuing the notice under 0.21, Rule 37(1), C.P.C, straightaway the court can order arrest. The second situation is provided in 0.21, Rule 37(2), C.P.C, indicated above, that is where appearance of the judgment-debtor is not made in obedience to the notice of the court under 0.21, Rule 37(1), C.P.C and the decree-holder issuance of a warrant for the arrest. The third situation is under 0.21, Rule 40(3), C.P.C is, after the conclusion of the enquiry under 0.21,Rule 40(1), C.P.C for detention in and, subject to Sec.51, C.P.C. an order for detention is passed. In such an event, the can also pass an order of arrest, if the judgment-debtor is not already under arrest. The situation is mentioned in 0.21, Rule 40(4), C.P.C, which says that a judgment released under Rule 40 may be re-arrested. In such an event, the can also pass an order of arrest, if the judgment-debtor is not already under arrest. The situation is mentioned in 0.21, Rule 40(4), C.P.C, which says that a judgment released under Rule 40 may be re-arrested. Even in the abovesaid four cases, before order could be passed, the court should find that any one of the reasons mentioned in the proviso to Sec.51, exists, in the light of the construction placed by the Supreme Court in the abovesaid George Varghese v. Bank of Cochin, (1980)2 S.C.C. 360 , on Sec.51, C.P.C. 10. In the light of the abovesaid discussion and conclusions I must also state observation in my own judgment in Gokuldass v. Appandantha Nainar, 1990 T.L.N.J. requires a modification. In that case, the execution court below had ordered arrest by saying “ no substantial payment, arrest J.D. ” In the said judgment, I set aside the arrest. No doubt, the said final decision in the said case is correct since it is clear from above discussions that by a mere finding of no substantial payment, arrest order could be passed. However, the following observation there, “ after the respondent has appeared before the court and has been also making several payments as stated above, no arrest could be made”, is not quite correct, since I have now held, following P. G.R.Padayachi v. Mayavaram Financial Corporation, (1973)2 M.L.J. 93.A.I.R. 1974 Mad. 1 (D.B.), an order of arrest could be passed under 0.21, Rule 37(2), C.P.C., even if on any adjourned date of hearing, the judgment-debtor is not bodily present in the court and his such in court should be deemed to be disobedience of the original notice issued under 0.21, 37(1), C.P.C. 11. Likewise, in my another decision in Ismail Bai v. M.Chinniah, (1990)1 L.W. 155 , similar modification of a similar observation found therein is required. There, I also relied the above referred to decision in Soundararajan v. Sayee Finance, (1986)1 M.L.J.214), in turn relied on the abovesaid P.G.R.Padayachi v. Mayavaram Financial Corporation, M.L.J. 93: ALU 1974 Mad. 1 (D.B.), to conclude that no reason need not be given ordering arrest. I have already pointed out that the said ruling that no reason need be while ordering arrest, is also not correct in the light of the abovesaid Jolly George Varghese v. Bank of Cochin, (1980)2S.C.C. 360. 12. 1 (D.B.), to conclude that no reason need not be given ordering arrest. I have already pointed out that the said ruling that no reason need be while ordering arrest, is also not correct in the light of the abovesaid Jolly George Varghese v. Bank of Cochin, (1980)2S.C.C. 360. 12. I have already pointed out in page 20 supra that even in a case where order of passed under 0.21, Rule 37(2), C.P.C. anyone of the reasons mentioned in proviso to 51 has to be proved. No doubt in such a case the said proof need not necessarily be enquiry as contemplated under 0.21, Rule 40, C.P.C., that is, by taking evidence as produce by decree-holder etc. That is so, because 0.21, Rule 37(2), C.P.C. does not for any particular mode of enquiry. In other words, even by affidavit evidence, the execution court could come to the conclusion that the necessary proof is there for ordering arrest judgment-debtor. In the present case, the execution court below has found that from decree-holder’s affidavit, the means of the judgment-debtor have been proved. No also finds that the sum of Rs.6,000 which the judgment-debtor was earlier directed to the decree-holder, was not paid and that the judgment-debtor failed to appear before court resulting in himself being set ex parte. But, yet there is no finding by the court as required under the proviso to Sec.51, that there was also a refusal or neglect to decree amount. Not can I conclude, merely because of the absence of the judgment on 2.12.1991 or his non-paymem of the abovesaid Rs.6,000, there was such refusal neglect, particularly because admittedly the judgment-debtor in the present case already paid in several instalments a substantial amount of the decree amount. Further, Supreme Court has also observed in the abovesaid Jolly George Varghese v. Bank of (1980)2 S.C.C. 360 , thus: “The provision emphasises the need to establish not mere omission to pay, but an attitude refusal on demand, verging on dishonest disowning of the obligation under the decree. 13. Further arrest under Rule 37(2) can be passed only “if the decree holder so requires That is even though the E.P. itself is for arrest and detention before passing order Rule 37(2), the court should once again ascertain from the decree holder whether actually requires arrest. 13. Further arrest under Rule 37(2) can be passed only “if the decree holder so requires That is even though the E.P. itself is for arrest and detention before passing order Rule 37(2), the court should once again ascertain from the decree holder whether actually requires arrest. But on the present case, there is nothing to show about the ascertainment and there is no finding to that affect. 14. The learned counsel for the respondent also brought to my notice, the following that have happened subsequent to 2.12.1991 order The judgment-debtor was arrested brought before the court and he also made some more payments towards the amount and subsequently he was released. Then, P.W.1, the decree-holder was examined and a second order of arrest was made on 6.3.1992, when also, the judgment-debtor remained ex parte. So, according learned counsel for the respondent, the earlier order dated 2.121991 has worked and on that ground, the civil revision petition has to be dismissed. But, on the other the learned counsel for the petitioner argues that the order dated 2.12.1991 was order and if this Court declares it illegal, then the judgment-debtor could sue the for damages for illegal arrest pursuant to 2.12.1991 order. So, according to the counsel for the petitioner, the civil revision petition cannot be disposed of as infructuous view of what has happened subsequently. I think there is some force in this argument learned counsel for the petitioner, though my such an observation should not be my opinion, anyway in favour of the petitioner with reference to any such suit. At any do not think that simply because pursuant to the order dated 2.12.1991, the debtor had been actually arrested subsequently or even because of the subsequent events, the civil revision petition could be described as having infructuous. This order no doubt will not affect the abovesaid subsequent order dated 6.3.1992. 15. The net result is, the impugned order of arrest dated 2.12.1991 is hereby set this civil revision petition is allowed. However, in the circumstances of case, there order as to costs. Petition allowed.