UMA KANTA BANERJEE Vs. RENWICK AND CO LTD

JUDGEMENT

(1.) This is an appeal by the judgment-debtor and is directed against an order of Mr. M.N. Mukherji, learned Additional Subordinate Judge, Birbhum, dated 18-2-1952.

(2.) The facts may be shortly put as follows: On 6-6-1951, the decree-holder respondent obtained a decree inter alia for specific delivery of possession of certain machines described in Schedule D to the plaint. The decree further directed that if possession could not be had, the defendant would have to pay a sum of Rs. 54,794-14-0 as the value of the said properties. As the judgment-debtor did neither deliver the properties mentioned in Schedule D nor pay the price thereof as mentioned in the decree, the decree-holder filed on 3-8-1951, an application for execution of the decree. In the petition for execution the decree-holder prayed for a variety of reliefs including a prayer for delivery of the said specific properties and for attachment of a decree obtained by the judgment-debtor. The execution petition was registered on 3-8-1951, and on the prayer of the decree-holder for attachment of a decree obtained by the judgment-debtor the Court directed the issue of a notice to the judgment-debtor to show cause why the said decree should not be attached. The Court further directed provisional attachment of the said decree. The judgment-debtor appeared in pursuance of the notice to show cause and prayed for time. Later on, on 18-9-1951, the decree-holder made a prayer for a direction on the judgment-debtor to deliver the said properties. This matter came up for hearing before the Court on 5-11-1951. The order of that date records that the Court heard the pleaders of the parties and directed the judgment-debtor to furnish security for the value of the moveables described in Schedule D, by 26-11-1951. It was further directed that failing compliance with this direction a writ for possession of the said moveables will issue. On 5-12-1951, the pleaders of the parties were again heard and the Court directed stay of issue of a writ of possession. The judgment-debtor was allowed time to furnish security till 20-12-1951. On 20-12-1951, as the judgment-debtor failed to furnish security, the Court directed the issue of a writ of passession. The judgment-debtor took no steps to have the order of 20-12-1951, directing issue of a writ of possession vacated by appropriate proceedings. The judgment-debtor, however, came up with a petition of objection under Section 47, Civil P. C. The relevant objection which has been pressed before us is that it was not open to the decree-holder to pray for simultaneous execution of the decree by the issue of a writ for seizure of the property and for attachment of the judgment-debtor's property. The petition of objection filed by the judgment-debtor was heard by the learned Subordinate Judge and was dismissed on 16-1-1952. It is the propriety of this order which has been challenged in this appeal.

(3.) Mr. Lala Hemanta Kumar who has appeared in support of the appeal has raised only two contentions. In the first place, he has contended that in a decree passed in accordance with the provisions of Order 20, Rule 10, Civil P. C. the decree-holder must, in the first instance, exhaust his remedy for delivery of the specific moveable property before be can pray for relief by way of arrest of the person of the judgment-debtor or attachment of his property.