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Judgment
James, J.—The appellants in this case held a decree in execution of which they applied to the Subordinate Judge of Monghyr for the arrest of the respondent. Several attempts were made to execute the warrant, but the respondent successfully evaded arrest; and ultimately the Subordinate Judge refused to make any further efforts to apprehend the judgment-debtor and dismissed the execution case.
Mr. Nandkeolyar on behalf of the decree-holders argued that the Subordinate Judge had no power to refuse the aid of the Court to the decree-holders, when it was properly invited in the manner provided by law. Mr. Janak Kishore on behalf of the respondent argues that no appeal lies from the order of the Subordinate Judge, because it is neither an order which is made appealable by the CPC nor a decree within the meaning of Section 47 of the Code.
An order made under Order 21, Rule 40 is appealable: Lala Das v. Mina Mal AIR 1922 Lah 259; but the order under appeal was not made under Rule 40, the provisions of which do not apply until the judgment-debtor has appeared in Court. It matters little for practical purposes whether the order is treated as an appealable order or as an order subject to revision. Indeed it will appear that until the judgment-debtor actually comes to Court, the executing Court has no power to excuse him from liability to arrest; but if the order is to be regarded as thus excusing the judgment-debtor from arrest, it is an order u/s 47 and so is appealable.
The fact that the judgment-debtor is absconding cannot be treated as absolving the executing Court from the duty of assisting the decree-holder in the manner provided by law in the execution of his decree. The order of the Subordinate Judge must be set aside and the execution case will be restored.
The appeal is allowed with costs.
Agarwala, J.
I agree.