T. N. VALLINAYAGAM, J. ( 1 ) HEARD Mr. P. G. Mogali for the petitioner and Mr. Agnihotri, for the first respondent. ( 2 ) ). An interesting question has been raised in this revision petition. The petitioner judgment-debtor No. 2 was sought to be arrested in execution of a decree for money. The petitioner was surety and he claimed that he has no means to pay. The executing Court ordered arrest. The point raised is whether a surety on whose behalf the loan was granted can raise a plea of no means. The authorities uniformaly held that answer to the above question in negative. ( 3 ) IN V. Velayudhan v. State Bank of India, AIR 1989 Kerala 38, it is held as follows :"obligation to account to the decree-holder is the first requirement of the clause, and every judgment-debtor whether he is a principal debtor or a mere guarantor or a surety has the said obligation to the decree-holder in accordance with the nature or circumstance in each case. Learned counsel cited the decision in Prem Ballabh v. Mathura, AIR 1967 SC 1342 , wherein a partner in a firm was found to be having no obligation in a fiduciary capacity to account to the other partners. In that case, a decree was passed in favour of one of the partners in a firm against some other partners including the Managing partner. It was held that in the absence of special circumstances, a partner cannot be regarded as a trustee for the other partners. On the facts, and in principle, the observations in the said decision have no bearing on the question involved in this case. A guarantor's liability is based on an undertaking or promise to perform the thing or the act in the event of non-performance by the principal obligator. A guaranty itself is an undertaking by one person that if another person fails to perform or fulfil an obligation the guarantor would perform it. It is in the nature of a warranty that the thing guaranteed to be done shall be done despite the non-performance of it by another for whom the guarantee is made. It involves a liability to account to the person who first acted on the strength of the guarantee. When can we say that a person is bound in a fiduciary capacity to account? It involves a liability to account to the person who first acted on the strength of the guarantee. When can we say that a person is bound in a fiduciary capacity to account? The term fiduciary is derived from Roman Law. It means as a noun, a person holding the character of a trustee or a character analogous to that of a trustee. As an adjective it means of the nature of a trust; having the characteristics of a trust; analogous to a trust; relating to or founded upon a trust or confidence". (Vide Black's Law Dictionary, Fifth Edition ). A person having duty, created by his undertaking to act primarily for another's benefit in matters connected with such undertaking has fiduciary obligation. The expression fiduciary capacity is not restricted to technical or express trusts, but includes also such offices or relations involving the imparting of a confidence on the strength of which one person has acted. When a guarantor gives an undertaking to another for advancing money to a third person, the guarantor knows that the other person would not advance money without such a guarantee. In other words, the money is advanced on the strength of the confidence reposed in the guarantor of the performance promised or undertaken. In that view, the position of a guarantor is very much near to that of a trustee, albeit some features of dissimilarities between the two. "the dictum in K. P. Ambady v. K. M. Balan, AIR 1959 Kerala 273 is relied upon, which is to the following effect :"where the terms of a security bond provided for an unconditional undertaking by the defendant in the matter of a sale return of attached articles, whether the jural relationship between the Court and the defendant was that of a bailor and bailee may be open to doubt. Assuming however that the defendant was a bailee under the bond vis-a-vis the Court, confidence was reposed in the defendant when the goods were handed to him for safe custody, that he will produce them into Court when called upon. There was, therefore, a quasi trust or a fiduciary position involving a liability to account in relation to another party. It was enough and no express trust was necessary. The defendant therefore fell within the classification of cl. (c) to the proviso to S. 51, Civil P. C. and was accordingly liable to arrest. There was, therefore, a quasi trust or a fiduciary position involving a liability to account in relation to another party. It was enough and no express trust was necessary. The defendant therefore fell within the classification of cl. (c) to the proviso to S. 51, Civil P. C. and was accordingly liable to arrest. "reliance also was placed in the dictum in M. A. Malik v. V. S. Thiruvengadaswami Mudaliar, AIR 1950 Madras 208,"the relationship between the Director and the members of a company is that of trustee and cestui que trust. Though he is not an express trustee he yet occupies a fiduciary position with regard to the members of the company. Therefore, he can be arrested in execution of a decree for payment of money for loss caused by him as director under S. 51 proviso (c) even though his allegation that he has no money is true. "the dictum in Tulsidas Mundhra v. The Official Liquidator, AIR 1988 Calcutta 402, is to the following effect :"on the other hand on behalf of the respondents it was urged that the expression substantial should not be considered to be a percentage of the decree. Any amount to be substantial in the facts and circumstances might be adequate. In the facts and circumstances of the case and in the view we propose to take it is not necessary for us to express any opinion as to the actual meaning of the expression 'substantial part thereof' in clause (b) of proviso to S. 51 of the Civil P. C. Here we might observe the view taken by Viscount Simon based on Aristotle that the expression 'substantial' in the facts and circumstances of the case must depend on the subject matter in the context of which the expression falls for decision. On the other hand our attention was drawn to the decision of the Madras High Court where the Division Bench of Madras High Court in the case of M. A. Malik v. V. S. Thiruven-gadaswami Mudaliar, AIR 1950 Madras 208, held that the relationship between the director and the members of a company was that of trustee and cestui que trust. Though he was not an express trustee he yet occupied a fiduciary position with regard to the members of the company. Though he was not an express trustee he yet occupied a fiduciary position with regard to the members of the company. Therefore , he could be arrested in execution of a decree for payment of money for loss caused by him as director under S. 51, proviso (c) even though his allegation that he had no money was true. Therefore, it was submitted on behalf of the respondents that in any event irrespective of whether the judgment debtor in this case being the appellant came within the mischief of clause (a) or clause (b) of the proviso to S. 51 indisputably came within the mischief of clause (c) of the proviso to S. 51 and, therefore, it was urged on behalf of the respondent that the learned Judge was right in passing the decree as he did. So far as the first part of the contention of the respondent that he came within the mischief of clause (c) of the proviso to S. 51 is concerned, it was urged that though the onus of proof was on the judgment creditor, being the liquidator and if from certain facts an inference followed, then that fact should be taken to have been proved. It was submitted that in the background of the facts and circumstances of the case narrated hereinbefore about the living and ways of life of the judgment-debtor it was only the natural conclusion to consider that he had means to pay but the judgment-debtor was avoiding payment. It was further urged that the actual state of finance except under coercive process of statute could not be proved by any inference drawn only by certain circumstances. It was, therefore, submitted that in the facts and circumstances of the case sufficient evidence had been adduced from which an inference could be drawn. It was further urged that the actual state of finance except under coercive process of statute could not be proved by any inference drawn only by certain circumstances. It was, therefore, submitted that in the facts and circumstances of the case sufficient evidence had been adduced from which an inference could be drawn. But as we mentioned hereinbefore it is true that though these facts which the learned Advocate for the respondents have drawn to our attention raise grave doubt and suspicion that though the judgment-debtor had means to pay had neglected to pay at least a substantial part of the decretal amount, it may not be safe in the facts and circumstances of the case to rest our decision on this aspect of the matter and in the view we have taken on the other aspect of the matter it is not necessary for us to express any final opinion on this question. As to what amount of evidence would lead to the inference which will be taken to be proved under clause (a) or clause (b) of the proviso to S. 51 of the Civil P. C. is left out it appears to us that the case clearly comes within the purview of clause (c) of the proviso to S. 51. Our attention was drawn to statute of England which is called "the Debtors Act, 1869' where S. 4 provides that with the exceptions mentioned in sub-section of S. 4 no person shall, after the commencement of this Act, be arrested or imprisoned for making default in payment of a sum of money. One of the exceptions was sub-sec. (3) of S. 4 which reads as follows :-"default by a trustee or person acting in a fiduciary capacity and ordered to pay by a Court of enquity any sum in his possession or under his control". It was emphasised that though the Legislature had used the expression 'any sum in his possession or under his control to pay. It appears to us that this construction would be unwarranted. The Indian Legislature had advisedly omitted to use the same expression as in clause (c), proviso to S. 51 of the Civil P. C. Unlike clauses (a) and (b), clause (c) is without any condition or any requirement that the delinquent judgment-debtor had refused or neglected to pay or had transferred or concealed any property. The Indian Legislature had advisedly omitted to use the same expression as in clause (c), proviso to S. 51 of the Civil P. C. Unlike clauses (a) and (b), clause (c) is without any condition or any requirement that the delinquent judgment-debtor had refused or neglected to pay or had transferred or concealed any property. This in our opinion was so designedly used by the Legislature. Here against the judgment-debtor decree was passed. The intention, it appears to us, must have been to provide deterrent punishment. It was submitted before us on behalf of the appellant that such kind of deterrent punishment would serve no purpose if a man who had no means to pay at the time of execution of the decree though he might have been guilty of breach of any act in fiduciary capacity and decree might have been passed in this respect, no purpose would be served by passing an order against such a person, trying to penalise him or coerce him to pay the amount. But in our opinion, however, the intention of the Legislature is clear, on the language used that intention becomes manifest if we compare and contrast the requirements of clauses (a) and (b) with clause (c) of the proviso to S. 51 of the Civil P. C. In this case on this aspect we are in respectful agreement with the observations of the Division Bench of the Madras High Court where the Madras High Court expressed the view that if a director occupied a fiduciary position in relation to the members of a company, he was liable to account to them. It seemed that his liability to account flowed from his fiduciary position which required him to hold the property of the company over which he had control for the benefit of the members of the company. The fact that it may not serve as a purpose of realising money would in our opinion be not sufficient when the legislative intent was clear. The purpose was to act as deterrent to all others to provide an absolute liability for those who were found guilty and a decree was passed in respect of the money in fiduciary capacity. The fact that it may not serve as a purpose of realising money would in our opinion be not sufficient when the legislative intent was clear. The purpose was to act as deterrent to all others to provide an absolute liability for those who were found guilty and a decree was passed in respect of the money in fiduciary capacity. If that is the position, in our opinion this case comes clearly within the mischief of clause (c) of the proviso to S. 51 of the Civil P. C. It is true that where civil liberty of a citizen is concerned, the Court should be reluctant to read such power of restraint unless compelled by the circumstances. We find that this is manifestly clear in contradistinction to clauses (a) and (b) of the same proviso and it was the intention of the Legislature to treat the men who are in fiduciary capacity separately and strictly for a public purpose. " ( 4 ) ORDER 21, Rule 37 gives a discretionary power to the Court to permit the judgment debtor to show cause against the detention in prison. Order 21, R. 37 reads thus :"discretionary power to permit judgment-debtor to show cause against detention in prison.- (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance 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 be committed to the civil prison. Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that with the object or effect of delaying the execution of the decree, the 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. (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. " ( 5 ) SECTION 51 of CPC speaks about the powers of the Courts in execution provides for arrest under S. 51 (c), which is as follows :"s. 51 -- xx xx xx xx xx (a) and (b) xx xx xx xx xx (c) by arrest and detention in prison for such period not exceeding the period specified in S. 58, where arrest and detention is permissible under that section. " ( 6 ) SECTION 55 talks about arrest and detention. Section 58 talks of detention and release. Though all these sections referred to the judgment-debtor, the question is whether the surety has become the judgment-debtor and avail the provisions or protection given in the above sections. Order 21, Rule 40 contemplates procedure when an appearance of the judgment-debtor in obedience of the notice or after arrest, what the Court should do. Karnataka Amendment to Rule 46-C is as follows :"if the garnishee disputes his liability or its extent, the Court may decide the dispute and thereafter direct the garnishee within such time as it may allow to pay into Court such sum as it has found to be due from him or so much thereof as may be sufficient to satisfy the decree and the costs of the proceedings. Provided that when the garnishee admits his liability but, disputes its extent and the decree-holder does not seek to recover from the garnishee any sum in excess of what he admits is due from him, the Court shall not be bound to decide the dispute and may direct the garnishee to pay such sum or so much thereof as is sufficient to satisfy the decree and the costs of the execution proceedings. "the word 'fiduciary capacity to account' occurring in clause (c) to S. 51 only makes it clear that a person having duty created by his undertaking to act primarily for interest benefit in matters connected with such undertaking as fiduciary obligation. It is also commonly understood that whenever a person stands surety and only on the basis of such surety the lender parts with the money. But for such confidence and reliance on the surety the transaction would not have been even come through. It is also commonly understood that whenever a person stands surety and only on the basis of such surety the lender parts with the money. But for such confidence and reliance on the surety the transaction would not have been even come through. Such a person on whose the money was advanced cannot later on plead that he is a person having no means. Framers of the Code have thought of and incorporated the word 'fiduciary capacity to account' in sub-clause (c) to proviso to S. 51 to make the provision clear. ( 7 ) IN this view, there can be no impediment for arrest of the person concerned in execution of the decree, as has been ordered by the Court below. ( 8 ) HOWEVER, Mr. Mogali appearing for the petitioner prays time also for payment of money. The total amount decreed is Rs. 23,421/- and it is claimed that a sum of Rs. 10,000/- has already been paid and if the balance is paid within a period of three months then the decree stands satisfied. I direct that the warrant already issued shall be suspended for a period of three months. ( 9 ) SUBJECT to the above, the revision petition is dismissed. --- *** --- .