- (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. 1454/- and prayed for the enforcement of the decree by attachment of the judgment debtor's property. IT may be mentioned that during the period of five months the judgment debtor had also applied for extension of time for the delivery or the mill but his application was rejected by the Court.
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 movable 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 and the decree holder has now come before this Court in second appeal.

It is urged that the executing court wrongly assumed this decree as one for movable property. The decree was for the delivery of a flour mill and engine which was imbedded in the earth and was immovable property and the provisions of order 20 rule 10 or order 20 rule 31 of the Code do not apply to this decree. In any event it is further urged that the decree is not in terms of order 20 rule 10 of the Code; but it enjoins upon the judgment debtor to deliver the mill and engine within a month of the decree failing which it will be a decree for Rs. 5000/-and costs. As the judgment debtor committed a breach of the terms mentioned in the decree he cannot be heard to say that the remedy of the appellant is only to recover movables and not Rs. 5000/ -.

On behalf of the respondent it is contended that the mill and the engine were not imbedded in the earth but were lying in a temple. In regard to the stipulation to deliver the mill and the engine within a month it is contended that it does not change the nature of the decree which is for the delivery of the movable property and the decree holder is bound to execute the decree in the manner provided in rule 3 1 order 20 of the Code of Civil Procedure.

In support of the latter contention learned counsel has referred to Manavikramman Vs. Moyankutti, (1), Balmukkunda Bisseswarlal Vs. Bengal-Nagpur Railway Co. , Ltd. (2), Shivaprasad Singh Vs. Prayagkumari Debee and others, (3), Karthiyani Amma Gouri Amma Vs. Padmanabha Pillai Naryana Pillai (4 ).

A person who is entitled to the delivery of movable property from another is not bound to sue for the delivery of the property; if he so chooses he may sue for its value alone. Even in cases where the suit is for the recovery of specific movable property the court may in certain circumstances instead of passing a decree for the delivery of property pass a decree for the value of the property. Order 20 rule 10 does not say that in all cases the suit should be for the delivery of the property and not for its value but where in a suit for the delivery of specific movable property a decree is passed in terms of Order 20 rule 10 then the decree holder has no option but to take delivery of the movable properties as long as they are capable of being delivered. It is only in those cases when an endeavour for the delivery of the property proves fruitless that the alternative mode of recovering its value can be adopted. The provisions of order 20 rule 10 and order 20 rule 31 of the Code are very clear, and leave no room for doubt that a decree holder is not entitled to execute the money part of the decree before applying for the delivery of the property. The law insists that when the decree is for a specific movable property the property itself should be delivered to the person entitled to it. With respect I agree with the view taken in the above cases. But the question is whether the above principle will also apply to the decree in question. As I have said earlier the decree contains a stipulation that the judgment debtor would deliver the mill and engine within a month of the decree and in default the decree shall be for Rs. 3000/- and costs. Stipulation as to time is an essential term of the decree. It is not in the form provided under O. 20 R. 10. If it had been so the decree holder would have immediately become entitled to recover the movable property; but in this case he could not be so entitled until the expiry of one month. The stipulation was clearly for the benefit of the judgment debtor and the right of the decree holder to recover the properties had been postponed by one month. If the judgment debtor fails to carry out the terms of the decree and commits a breach of it, he cannot complain of the consequences which ensue on account of that breach. In a case where the court has given a direction and fixed a time within which the judgment debtor has to deliver the movable properties to the decree holder and has further provided that in case of default the decree holer will be entitled to a decree for a certain sum the decree cannot be considered to be in the form provided in O. 20 R. 10 and consequently provisions of O. 21 R. 31 are not attracted, in such a case the decree holder is not bound to exhaust his remedy of recovering the property before he can proceed to recover money. The executing court cannot go 'behind the decree and vary its terms. My view finds support from the following observations made in Balmukunda Bisseswarlal's case, (1) cited on behalf of the respondent that: - "these being our findings the question that arises is whether in the circumstances the application for execution of the decree in so far as it relates to the recovery of Rs. 500/- is maintainable. The decree is in the form suggested by O. 20, R. 10, Civil P. C. , O. 42, R. 1 of the Rules of Supreme Court, 1833, to which our attention has been drawn, contemplates a decree directing payment of money or delivery of properties, and under that rule, in the case of such a decree no demand whom be necessary but the defendant against whom it is passed is bound to obey. The principle of that rule therefore cannot be invoked in the present case. If the decree had directed the defendants to deliver the articles within a specified time and provided that, in default of such delivery the plaintiffs would be entitled to recover the money, the decree-holders would have been entitled to maintain an application for execution for recovery of the money on such default having happened. But the case of a decree which follows O. 20 R. 10 Civil P. C. , is specifically provided for, so far as its mode of execution is concerned, in O. 21, R. 31, Civil P. C. and that Procedure has not been adopted by the decree-holders. "

The courts below were therefore, not right in holding that the decree bolder was not entitled to apply for the recovery of money and was bound to execute the decree in the manner provided under O. 21 R. 31 of the Code.

As regards the appellant's objection that the mill is an immovable property and the provisions of O. 20 R. 10 do not apply to this decree it may be observed that this objection was not raised at any earlier stage and this being a mixed question of fact and law cannot be allowed to be raised in second appeal particularly when it is disputed by the respondent.

(3.)THIS appeal is therefore, allowed. The order of the court below is set aside and the case will go back to the executing court for further proceedings in execution according to law. In the circumstances parties shall bear their own costs. .
;