Kamaldhari Lal and Others vs Kamleshwari Sahay

Rowland, J.—This is an appeal by the decree-holder who sought to execute a decree for money against one of his judgroent-debtors who happened to be in the original transaction not the person primarily liable but a surety. The deoreeholder has applied to the executing Court to execute the decree by the arrest of this judgment.debtor and the latter objected, firstly, that he being the surety and not the principal person liable, execution should not be levied against him until all means of execution against the principal judgment, debtors had been exhausted.

That first objection was disallowed by the Subordinate Judge and rightly so. The second objection was that the decree-holder if he could proceed against this judgment-debtor, ought, in the first instance, to levy execution against the property and only be permitted to levy execution against the person on failure of his remedy against the property. This objection the Subordinate Judge allowed on the grounds that the objeotor had sufficient properties against which the decree-holder might proceed in the first instance, and that there was nothing convincing to show that the objeotor was likely to obstruct or to leave the jurisdiction of the Court or that he had dishonestly transferred, sold or removed any of his property or committed any other act of toad faith.

For the appellant-decree-holder, it is argued that these are not grounds on which a Court should disallow an application for the arrest of a defaulting judgment-debtor, that the decree-holder is given by the Code the option of choosing the manner in which he will ask the Court to execute his decree and that except as specifically provided in the Code, it is not for the Court to impose restrictions on this freedom of choice of the decree-holder. Reference is made to the decision in Hargobind Kishan Chand v. Hakim Singh A.I.R (1926) . Lah. 110 which it was held that the decree-holder has the right to decide whether he should execute the decree for money by arrest of the judgment-debtor or by attachment and sale of property or by both; and that the discretion given to the Court by Order 21, Rule 21, to refuse simultaneous execution against the person and the property did not extend to compelling the decree-holder to take either one of these methods.

The decision was founded on an examination of Section 51, Civil P.C., and of Order 21, Rules 11(1), 11(2) and particularly Clause (j) and Rule 17. Rule 30 is also referred to. Reliance is placed on observations of the Bombay High Court in Chena Pemaji v. Ghelabhai Narandas (1883) 7 Bom. 301 to the effeot that the creditor has a right to all the assistance which the law can give him. Por the respondent we have been referred to the amendment made in Section 51 of the Code subsequent to the above admission. The Amendment Act of 1936 inserted a proviso placing some restrictions on the right of the decree, holder to obtain an order for arrest against the judgment-debtor. The Court must be satisfied either (a) that the judgment-debtor has done or is likely to do certain things designed to defeat the decree; or "(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 refuses or neglects or has refused or neglected to pay the same, or" (o) that the decree was for a liability of a peculiar nature.

Now in dealing with the objection of the judgment-debtor, the Subordinate Judge has referred to the absence of matters referred to in Clause (a) of the proviso; but he has not paid any attention to Clause (b) and it is substantially the case of the decreeholder that arrest ought to be ordered on the ground that the judgment-debtor is perfectly capable of paying but is unwilling to do so. The objector took the following as grounds Nos. 10 and 11 of his petition of objection in the lower Court:

(10) That the petitioner is a man who holds high position in sooiety and it is only with a view to lower him in the estimation of the public that such a wrong step is taken;

(11) that the petitioner has got sufficient properties and hence the decree-holders ought not to have prayed for warrant of arrest.

It has been submitted to us that the application for arrest was made with the purpose of humiliating the judgment-debtor. On the other hand the appellant main, tains that the sole purpose of applying for arrest was to obtain payment of the judgment-debtor.

The objection taken shows, in my opinion, a misconception of the principles which should govern the relations between creditors and debtors. If it is considered an abnormal thing for a gentleman of wealth and position to be arrested, this should be because it is an abnormal thing for such a gentleman to evade, avoid, delay I and obstruct payment of his just ''debts; and a debtor who is able to pay but does not pay is in the position of a person in contempt of Court. The proper course for such a person is to purge his contempt by fulfilling the order of the Court and pay the decretal amount. The petitioner before the Subordinate Judge took an objection that he was not liable; but this was asking the Court to go behind the decree and a party against whom a decree has been passed is not entitled to be judge in his own cause and to choose whether it should or not be executed against him. He is not entitled to resist execution merely because he is dissatisfied with the decision in the suit.

On the legal point, I entirely agree with the decision in Hargobind Kishan Chand v. Hakim Singh A.I.R (1926) . Lah. 110 which seems to be in accordance with the current of authority in earlier decisions under the old Code in the Calcutta and Allahabad High Courts, Raja Chunder Roy v. Shama Soondari Debi (1879) 4 Cal. 583 and Johari Mal v. Sant Lal (1887) 9 All. 484. The Lahore decision, which I have cited, shows that the view of the Bombay High Court is on similar lines.

I would allow the appeal and set aside the order of the Subordinate Judge. I would disallow the objection of the judgment, debtor and direct that the execution case be restored and do proceed according to law. Mr. Bose for the appellant has assured us that in order to give the respondent an opportunity of satisfying the decree and avoiding arrest, his client will not take steps for the arrest of the respondent within two months. The appellant will get his costs of this appeal and of the objection in the Court below.

James J.

I agree.