C.B.Bhargava, J. - (1.)This is an appeal by the decree-holder against the decision of the learned District Judge, Bhilwara dated 28th May 1957 in execution proceedings.
(2.)It appears that on 9th December, 1955 a decree for Rs. 1450/- and delivery of a flour mill with an engine in running condition was passed in favour of the appellant. There was a further stipulation in the decree that the judgment- debtor would hand over the mill and the engine to the decree-holder within a month of the decree, in default there would be a decree for Rs. 5000/- with costs in favour of the decree-holder. The judgment-debtor failed to deliver the mill and the engine within the time provided in the decree. The decree-holder after the expiry of about five months applied for the execution of the money decree claiming Rs. 5000/- besides the sum of Rs. 1450/- and prayed for the enforcement of the decree by attachment of the judgment-debtor's pro- petty. It may be mentioned that during the period of five months the judgment-debtor had also applied for extension of time for the delivery of the mill but his application was rejected by the Court.
(3.)In the execution proceedings the judgment-debtor filed objections viz., he is prepared to hand over the mill and the engine to the decree-holder and the latter is not entitled to execute the decree for money as long as the moveable properties in respect of which the decree has been passed were available. In other words the objection was that the decree being for the delivery of specific movable property in the form provided in Rule 10 of Order 20 of the Code of Civil Procedure it can be executed only in the manner provided in Rule 30 of Order 21 of the Code and unless the decree-holder exhausts his remedy for the recovery of the movables he cannot claim its value in money- The objection of the judgment-debtor prevailed in the courts below a.nd the decree-holder has now come before this Court in Second Appeal.
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