KAMALDHARI LAL Vs. KAMLESHWARI SAHAY

JUDGEMENT

(1.) This is an appeal by the decree-holder who sought to execute a decree for money against one of his judgroent-debtors who happened to be in the original transaction not the person primarily liable but a surety. The deoreeholder has applied to the executing Court to execute the decree by the arrest of this judgment.debtor and the latter objected, firstly, that he being the surety and not the principal person liable, execution should not be levied against him until all means of execution against the principal judgment, debtors had been exhausted.

(2.) That first objection was disallowed by the Subordinate Judge and rightly so. The second objection was that the decree-holder if he could proceed against this judgment-debtor, ought, in the first instance, to levy execution against the property and only be permitted to levy execution against the person on failure of his remedy against the property. This objection the Subordinate Judge allowed on the grounds that the objeotor had sufficient properties against which the decree- holder might proceed in the first instance, and that there was nothing convincing to show that the objeotor was likely to obstruct or to leave the jurisdiction of the Court or that he had dishonestly transferred, sold or removed any of his property or committed any other act of toad faith.

(3.) For the appellant-decree-holder, it is argued that these are not grounds on which a Court should disallow an application for the arrest of a defaulting judgment-debtor, that the decree-holder is given by the Code the option of choosing the manner in which he will ask the Court to execute his decree and that except as specifically provided in the Code, it is not for the Court to impose restrictions on this freedom of choice of the decree-holder. Reference is made to the decision in Hargobind Kishan Chand V/s. Hakim Singh A.I.R (1926) . Lah. 110 which it was held that the decree-holder has the right to decide whether he should execute the decree for money by arrest of the judgment-debtor or by attachment and sale of property or by both; and that the discretion given to the Court by Order 21, Rule 21, to refuse simultaneous execution against the person and the property did not extend to compelling the decree-holder to take either one of these methods.