S. Govindasamy Odayar vs The Union Bank Ltd.

Wallace, J.—A preliminary point is raised by respondent viz., whether an appeal lies. Appellant contends that the order is one u/s 47, C.P.C., as he is challenging the legality of his arrest; respondent contends that as he is only challenging the mode of executing the warrant, the case does not come u/s 47. There is no direct authority on the point. As at present advised, we incline to hold that the appeal is valid.

On the merits, we cannot see that the appellant is entitled to the benefit of Section 135 of the Code of Civil Procedure. He was arrested at 7 p.m. on the 25th November, 1922; he was then in custody of the Court''s officers having been arrested, under another decree. Appellant; contends (a) that at the time of his arresting he was attending the Court for the purposes of execution of the first decree (b) that a judgment-debtor cannot be the subject of two arrests at the same time. As to (a) we can find no order which directed appellant to be in attendance on the Court at 7 p.m. on the 25th November, 1922. As to (b) we see no reason why when there are two decrees held by different decree-holders out against the judgment-debtor, he should not be arrested under each.

We find that the appellant is under no legal obligation to be present before the Court at the time of his arrest. He is not therefore entitled to the benefit of Section 135 and the order appealed against is correct.

The appeal is dismissed with costs. The security given by appellant in the District Court under order of this Court will enure until the decree-holder moves the District Court further in the matter of this execution.