St. Sebastians Kuries and Enterprises (P) Ltd. vs N.A. Mukundan and Another

M.M. Pareed Pillay, J.—Revision Petitioner-decree holder challenges the order of the Munsiff, Chavakkad dismissing E.P. 194 of 1988 on the ground that the revision Petitioner has already attached the property of the first Defendant.

Counsel for the revision Petitioner submitted that the impugned order is thoroughly wrong and as the Munsiff has failed to exercise jurisdiction vested in him this Court has necessarily to interfere u/s 115 Code of Civil Procedure. There is considerable force in the above contention. It is open to any decree holder to take steps in execution to realise the decree amount as provided under Order XXI, Rule 30 Code of Civil Procedure. Order XXI, Rule 30 provides that every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property or by both. From a plain reading of Order XXI, Rule 30 it is clear that the decree holder is entitled to execute the decree by seeking the aid of the Court by detention of the judgment-debtor in the civil prison or by attachment and sale of his property. It is open to the decree holder to have recourse to either of the remedies or by taking steps simultaneously to have the judgment-debtor arrested and detained in the civil prison or by attaching his property and bringing it to sale through the aegis of the Court. Merely because property of the first Defendant was attached, the right of the decree holder to execute the decree by seeking the arrest of the judgment-debtor and detention in the civil prison as provided under Order XXI, Rule 30 cannot be denied. As it is always open to the decree holder to execute the decree for money due to him from the judgment debtor, the executing Court cannot insist that the decree holder should have recourse only to one of the remedies at a particular time. In other words, merely because the property of the judgment-debtor has been attached decree holder''s remedy by way of arrest of the judgment debtor cannot be denied. As Order XXI, Rule 30 allows simultaneous execution both against the property and person of the judgment debtor, the executing Court was not justified in dismissing the execution petition.

The order of the Munsiff in E.P. 194 of 1988 is hereby set aside and the execution petition is restored to file. The Munsiff is directed to proceed with the execution petition in accordance with law. The C.R.P. stands allowed. There is no order as to costs.