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Judgment
Burn, J.—This appeal is preferred by the Court of Wards from the order of the learned Subordinate Judgeof Chicacole passed in Execution
Petition No. 29 of 1936 in O.S. No. 57 of 1931. The respondent holds a decree against the son and the adopted son of the late Zamindar of
Mandasa directing them to pay the plaintiff from out of the properties of the Mandasa estate in their hands Rs. 7,966-10-9 with interest thereon at
six per cent, per annum from the 7th November, 1931, till payment. The decree-holder prays for attachment of the amount of Rs. 15,000
belonging to the Mandasa estate in the possession of the Sub-treasury of Ichchapur under Order 21, Rule 52. The Sub-Collector of Chicacole
who has taken over the management of the estate takes exception on theground that u/s 45 of the Madras Court of Wards Act the local
Government has declared that:
The execution of decrees passed by the Civil Court which are capable of execution by sale of any immovable property of the said ward...shall be
transferred to the Collector of the Vizagapatam District.
As the learned Subordinate Judge observes, the question for consideration is what is the meaning of the expression '' decrees capable of
execution by the sale of any immovable property of the ward'' ? The learned Advocate-General contends that this description is wide enough to
cover an ordinary decree for the payment of money such as this one, since a decree for the payment of money can at any time be executed by
attachment and sale of the immovable properties of the judgment-debtor. The contention raised for the decree-holder, which is supported by Mr.
Jagannadha Das in this Court, is that the expression "" capable of execution by the sale of immovable property "" must be understood with reference
to the execution proceedings that have actually been taken. The suggestion is that since the decree-holder has not in fact applied for attachment
and sale of immovable properties, therefore the decree is not one which is capable of execution by the sale immovable property. The learned
Subordinate Judge has accepted this argument but in my opinion he has been misled in so doing. The learned Subordinate Judge says that:
The decree-holder''s capacity to sell the property is co-existent with his desire to sell the same.
Burn, J. This, in my opinion, displays some confusion of thought. It is not correct to say that the decree-holder''s capacity is coexistent with or in
any way dependent upon his desires. He may be perfectly capable of selling the property but may not wish to do so. In fact, that was the state of
mind in which he was when this execution petition was lodged. No one could allege that the decree-holder had not the capacity to bring the
judgment-debtor''s immovable property to sale. He was fully clothed with that capacity by the provisions of the Civil Procedure Code, but he had
no desire to sell the immovable property. What he preferred to do was to attach the cash in the sub-treasury. The learned Subordinate Judge
appears to have confused the question of the description of the decree with the method which the decree-holder may adopt to execute his decree.
The expression ''decree capable of execution by sale of immovable property'' appears to me to be intelligible and clear and I am not prepared to
restrict it in the way suggested by Mr. Jagannadha Das. In my opinion it would be wrong to hold that this description only applies to decrees in
which applications have already been made for attachment and sale of immovable property. I think that the character of the decree is not in any
way altered from time to time by the procedure which the decree-holder may adopt in execution of it. It is common place to say that an ordinary
money decree may be executed by attachment and sale of movable or immovable property or by arrest and detention or by the appointment of a
receiver. All these remedies may be adopted in succession; but it would be wrong to say that the character of the decree was varied from time to
time in accordance with the method adopted by the decree-holder for enforcing it.
Mr. Jagannadha Das is prepared to argue that if this wide meaning is allowed to the expression '' capable of execution by the sale of immovable
property '' almost any kind of decree can be brought within it. I am not prepared to enter upon a discussion of whether it would be feasible, e.g., to
bring a decree for restitution of conjugal rights within this or not. I am quite clear that this decree which is for the payment of money is one which is
capable of execution by sale of immovable property of the ward and therefore disagreeing with the learned Subordinate Judge I hold that it is a
decree which in pursuance of the notification of the Government (G.O. Ms. No. 1236 Revenue dated 7th June, 1936) must be transferred for
execution to the Collector of Vizagapatam District.
For these reasons I think the appeal should be allowed and the order of the learned Subordinate Judge set aside. The respondent decree-holder
will way the costs of the appellant.
Lakshmana Rao, J.
I agree and would only add that the nature or character of a decree does not depend upon or vary with the mode of execution adopted by the
decree-holder. The decree in this case is undoubtedly capable of execution by sale of immovable property of the ward and Section 68 of the CPC
has no bearing. The language too is different and it is not permissible to construe Section 45 of the Court of Wards Act with reference to the terms
of Section 68 of the CPC which provides for transfer of the execution of decrees against immovable property in any local area to the Collector.