R.C. PATNAIK, J.

(1.) This revision is directed against an order passed by the Munsif, Ist. Court, Cuttack, rejecting the objection of the judgment-debtors to the issue of Warrant of arrest under Order 21, Rule 37 of the Civil P. C.

(2.) The opposite party obtained a money decree against the petitioners and their father Uchhab, and levied execution thereof in Execution Case No, 26 of 1982. Uchhab expired during the pendency of the proceeding. No substitution was made. The execution proceeded against the petitioners. At this stage, a few relevant facts be noted. Despite service of notice the judgment-debtors did not appear. So, the decree-holder took steps for issue of notice to show cause why warrants of arrest should not be issued against the judgment debtors. The Court rejected the prayer of the decree-holder being of the view that the application was lacking in requisite averments warranting action under Order 21, Rule 37 of the Civil P. C. (for short, 'the Code'). On 8-3-1983 the decree- holder filed a fresh petition with affidavit, for reconsideration of the matter. On 18-3-1983, the Court directed issue of notice to the judgment-debtors under Order 21, Rule 37 of the Code for showing cause. On 12-5-1983, Mayadharjudgment-debtor No. 3 asked for time to file show cause. On 11-7-1983 the judgment-debtors filed their objection erroneously before the Registrar, Civil Courts. The same was received by the Court on 13-7-1983. That day the executing Court issued a letter of request to the Assistant Engineer, P. H. D., Cuttack Sadar No. II for suspension of Mayadhar who was serving under him as a Fitter Mistry, so that he could be arrested under Order 21, Rule 37 of the Code. On 18-7-1983 on the motion of Mayadhar the executing Court recalled its order dated 13-7-1983. The decree-holder then moved the executing Court for recall of the order dated 13 (18?)-7-1983 as the same had been passed under misapprehension of facts. It was pointed out that the requirements of Order 21, Rule 37 had been satisfied and notice had been served on the judgment- debtors. The executing Court, however, did not recall the order and gave a direction for disposal of the miscellaneous proceeding. By the impugned order dated 22-8-1983, he rejected the objection raised by the judgment-debtors. He held that the execution case was maintainable despite death of judgment debtor No. 1 that the moveables had been described with sufficient particularity and lastly, that it was not necessary for the Court while issuing warrants of arrest to be satisfied that the requirements of Section 51 of the Code were satisfied.

(3.) Mr. Ramakanta Mohanty, the learned counsel for the petitioners, submitted that arrest of judgment-debtor involves encroachment on his liberty, Therefore, the safeguards and pre-conditions as contained in Section 51 and the proviso to Rule 37 (1) of Order 21 of the Code should be complied with. In rare cases the provisions should be taken recourse to. He further submitted that the Court before issuing notice should be satisfied that the proviso was attracted and warrant of arrest instead of notice should issue. Mr. Ganeswar Rath, the learned counsel for the decree-holder, contended that the proceeding had not reached the stage of Rule 40 of Order 21. The requirements of Section 51 were relevant at that stage, when the Court considered the question of detention of the judgment-debtors in civil prison.

(4.) As the question involves the liberty of a citizen, it has Article 21 dimension and I should preface this discussion with some observations of the Supreme Court. In Jolly George v. Bank of Cochin, AIR 1980 SC 470, it was observed :-

''Equally meaningful is the import of Article 21 of the Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Article 21, read with Arts 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence.........It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of Daridra Narayana (land of poverty) is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness........."

The words which hurt are 'or has had since the date of the decree, the means to pay the amount of the decree'. This implies superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Article II (of the Covenant) and Article 121 (of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay! the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor's other pressing ; needs and straitened circumstances will play prominently. We would have by this construction, sauced law with justice; harmonised Section 5l with the Covenant and the Constitution." Their Lordships did not decide if proviso '"to Section 51 read with Order 21, Rule 37 was ultra vires but they remitted the matter for reconsideration in accordance with the observations made, as aforesaid.

(5.) Section 51 of the Code lays down, the modes of execution of a decree. The proviso lays down the prerequisites for detention of the judgment-debtor in prison. Order 21 , Rule 37 (1) lays down the procedure where application is made for the enforcement of execution by detention of the judgment-debtor in prison. It provides, that 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 and show cause. The word 'shall' occurring in Rule 37 of Order 21 was substituted in 1936 for the word 'may'. The use of the word 'shall' makes the provision mandatory. By the proviso the Court is authorised to issue warrant of arrest instead of a notice if it 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. The two expressions occurring in Sub-rule (1) of Rule 37 of Order 21 are significant, namely, "the judgments-debtor who is liable to be arrested" in the main part and "is satisfied" in the proviso. A mere prayer for the execution of the decree for the payment of money by arrest and detention in the civil prison of a judgment-debtor does not attract the main part of Sub-rule (1). The further requirement is that such judgment-debtor is liable to be arrested. The circumstance/circumstances making him liable to be arrested has/have to be averred in the petition. A judgment-debtor is not arrested as a matter course. Therefore, there must be prima facie materials before the Court for proceeding under Order 21, Rule 37, There must be materials making out a prima facie case for enquiry under Rule 40 of Order 21. Action under Rule 37 is not just an innocuous matter. Whether it is issue of warrant of arrest or notice to show cause, why the judgment-debtor should not be arrested, it has impact on human dignity. An application seeking detention of the judgment-debtor in prison is maintainable if any of the circumstances enumerated in Clauses (a) to (c) of the proviso to Section 51 exists. So, even before, issuing notice the Court has to be prima facie satisfied about the maintainability of the application. Warrant of arrest under the proviso to Order 21, Rule 37 (1) can issue if the Court is satisfied that with the object or effect of delaying execution of the decree the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court. Existence of any other circumstance would not warrant issue of warrant of arrest under the proviso. In Harpal Singh v. Lala Hiralal, AIR 1955 All 402, Raghubar Dayal, J. (as he then was) speaking for the Division Bench drew attention and laid stress on the amendment to Sub-rule (1) of Rule 37 of Order 21 by the 1936 Civil Procedure Code (Amendment) Act, by substitution of the word 'shall' for the word 'may' in the main part and addition of the proviso. I have taken inspiration from his judgment to record my view, as aforesaid. Harpal Singh's case was followed and approved by this Court in the case of Paramananda Parida v. Maheswar Panda, ILR (1960) Cuttack 33, a case under Order 21, Rule 40 of the Code. The contrary view has been taken in the following cases: Londa Abbayee v. Badam Suryanarayana, AIR 1948 Mad 9 (1), Wahengbam Menjor Singh v. Adweta Debota, AIR 1973 Gauhati 84 and P.G. Ranganatha Padayachi v. The Mayavaram Financial Corporation Ltd., AIR 1974 Mad 1. In the Gauhati case it was held:

"............Section 51 comes info play only when the order of detention is to be passed and not at the time of issuing a warrant of arrest under Rule 37 (1) of Order XXI.........

" In P. G. Ranganalha's case the question was if the order of arrest of the judgment-debtor under Order 21, Rule 37 (2) without giving a finding regarding the means of the judgment-debtor to pay the decree amount was without jurisdiction. Their Lordships upheld the jurisdiction holding that the said question would be gone into by the executing Court while deciding whether the judgment-debtor would be committed to prison. Horwill, J., in Wahengbam's case held that the proviso, to Section 51 applied to an order of committing the judgment-debtor to the civil prison and not to an order of arrest.

(6.) and

(7.) Not only must the execution application contain the necessary averments justifying that the judgment- debtor is liable, to be arrested, but also the Court must be prima facie satisfied that the materials presented justify action under Rule 37. The Court does not issue notice mechanically, if the rule has a human dignity aspect, as per the decision of the Supreme Court. On a frivolous application failing to make out a prima case for detention in civil prison under the proviso to Section 51 no notice can issue. The application should be rejected in limine. This necessitates therefore an examination by the Court with reference to the proviso to Section 51 for the satisfaction that the judgment- debtor is liable to be arrested for detention in prison. So I cannot agree with the aforesaid decisions that no examination with reference to proviso to Section 51 is called for. Under the proviso to Rule 37 (1) of Order. 21, the Court is authorised to issue warrant of arrest if it is satisfied 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. The power under the proviso can be exercised only if the Court is satisfied that any of the circumstances as mentioned in the proviso exists. Its satisfaction must appear, on the face of the order. It is obvious, therefore, that the Court must record its reasons for its satisfaction while acting under the proviso. Issue of warrant of arrest would not be justified except in the circumstances contained in the proviso which is the same as contained in Clause (a) (i) of the proviso to Section 51. Whereas any of the circumstances contained in the proviso may be a good ground for issuing a notice under the main part of Sub-rule (I) of Rule 37 of Order 21, warrant of arrest may be issued in the first instance if the circumstances contained in Clause (a) (i) of the proviso to Section 51 exist. The view I have taken is also in accord with the observations of the Supreme Court in Jolly George's case (AIR 1980 SC. 470).

(8.) In the present case, the judgment-debtor, Mayadhar, appeared through counsel on 12-5-1983. Both the judgment-debtors (judgment-debtor No. 1 being dead) filed objection on 11-7-1983 before the Registrar which was brought to the record on 13-7-1983. The said objection was considered and rejected by the Court. We are not concerned with the third limb of their objection, namely, whether the requirement of Section 51 should have been complied with before ordering their arrest. The executing Court rejected the objection being of the view that Section 51 applied at Rule 40 of Order 21 stage and not at Order 21, Ru

le 37 stage. (9.) The approach of the learned Munsif is totally misconceived. The judgment- debtors appeared before the Court in pursuance of notice issued to them under Order 21, Rule 37 of the Code by order dated 8-3-1983. Stage of Rule 37 was already over. Hence, there was no question of application of Rule 38, The case had reached a stage where an inquiry under Rule 40 should commence, (10.) It has been brought to my notice by the learned counsel for the petitioners that after rejecting their objection, the Court by order dated 2-3-1983 directed a letter of request to issue to the appointing authority for suspension of judgment-debtor Mayadhar so that his arrest could be effected under Rule 38 of Order 21. The counsel for the decree-holder opposed the challenge to the order dated 2-9-1983 on the ground that a separate revision should have been filed. The objection is misconceived. The matter is before me in revision. Having regard to the observation given by me, order dated 2-9-1983 cannot stand, the foundation having already been knocked off. I would, therefore, accept this revision, quash the order directing issue of warrant of arrest and allow this revision. I direct the executing Court to proceed with the enquiry under Rule 40 of the Order 21 of the Code keeping in mind the observations made by this Court in Paramananda Parida's case (ILR (1960) Cuttack 33). (11.) In the result, the revision is allowed. There would be no order as to costs.