This is wholly an unsustainable order which is challenged in this revision petition. The order of arrest and detention of the judgment-debtor has been made by the learned Munsif in execution proceedings in which the decree-holder is seeking to recover Rs. 7939-76.


2. The only evidence which is produced on behalf of the decree-holder was the evidence of the husband of the decree-holder. It is true that the judgment-debtor himself claimed the benefit of Tamil Nadu Act 13 of 1980. He has undoubtedly failed to establish that he is entitled to the benefit of the provisions of that Act. That did not, however, necessarily mean that an order of arrest and detention in civil prison must necessarily follow.


3. There is no basis of the evidence of P. W. 1, that the income of the judgment-debtor was Rs. 70,000. On what basis this figure has been given by the witness is not stated; nor has it been clarified by the learned counsel who appears in this court.


4. The District Munsif has taken the view that because the judgment-debtor is paying meagre amounts he is neglecting to pay. It appears that the learned District Munsif made the order of detention because of the evidence that the income of the judgment-debtor was Rs. 70,000. As already observed, there is no basis for such a finding or assumption. The proviso to S.51 of the Civil Procedure Code in clause (b) thereof refers to refusal or neglect to pay by the judgment-debtor. Refusal or neglect envisages the capacity to pay but deliberate non-payment. Such refusal or neglect cannot be said to have been established in the instant case. A useful reference may also be made to the decision of this Court in V. P. Madhavan Nambiar v. Chaldean Syrian Bank Ltd., 1955 AIR(Mad) 409 in which this court has pointed out that before making an order for arrest and detention of the judgment-debtor the Court should in suitable cases first order payment by instalments. In paragraph 8 of the judgment, the court observed as follows :


"The recognised practice in England in appropriate cases as laid down in Barefoot v. Clark, 1949 (1) AllER 1039, 1949 (2) KB 97 and In re a judgment-debtor 1935 (51) ITR 524 is not to make an order of committal to prison on the first application but to order payment by instalments. I can see no impediment in this practice being adopted in suitable cases under S.51, C.P.C. read with Order 21, Rules 39 and 40, although they do not specifically direct an order for instalment first. The fixation of instalments after an enquiry into the means and the ability of the judgment-debtor to pay in many cases is much fairer to the judgment-debtor who, whilst not being in a position to discharge the decree in full can certainly pay something towards its discharge. The fixation of instalments helps to bridge the wide gulf between the dismissal of an execution petition for arrest as a decree-holder failing strictly to discharge the onus resting on him under the proviso to S.51 and the commitment to prison of a judgment-debtor who while in a position to pay something simply cannot discharge the decree in full, as he has no immediate means to do it. After the instalments have been fixed by the court, then a failure to comply with the court order would immediately justify arrest and commitment to prison. In our view, this procedure would be perfectly admissible under proviso (b) to S.51. It is equitable both to decree-holder and judgment-debtor and only sends to prison a judgment-debtor who refused or neglected to pay towards the decree something which the court has found after hearing him to be within his means to pay." *


5. The facts of the present case show that the judgment-debtor was in a position to pay the amount by instalments. Indeed, the learned District Munsif took the view that instead of paying the decretal amount in full the judgment-debtor is making payments only by instalments and that since he has waived the right to file a counter he must be held to have the means to pay the decretal. It is true that Exs. A. 4 and A. 5 have been found to prove that there are two houses which belonged to the judgment-debtor. But merely because a judgment-debtor possesses immovable property, an order of detention in civil prison cannot be made for his failure to pay.


6. It is open to the decree-holder to file a petition for attachment and sale of the immovable property. The decree-holder in this case has not taken recourse to those provisions. It is

obvious that he is utilising the provisions of O.21, R.38. C.P.C. merely as a lever to force payment without taking recourse to the proceedings for attachment and sale of the immovable property. The petition clearly appears to be wholly mala fide. 7. Accordingly, the order of the learned District Munsif is set aside and the petition of the decree-holder for committing the judgment-debtor to civil prison is rejected. The decree-holder will pay the costs of this revision, costs Rs. 250.