SOMU IYER Vs. CHELLIAH PILLAI

JUDGEMENT

(1.) The appellant in this civil miscellaneous second appeal is the judgment-debtor in Order 8. No. 311 of 1919 on the file of the Principal District Munsif of Manamadura and the respondent is the decree-holder therein. The decree was transferred for execution to the Court of the District Munsif of Madura Town. On the 24 October, 1925, the decree-holder applied for execution of the decree both by arresting the judgment-debtor and for attaching his moveables. This application having been put in more than a year after the immediately preceding application for execution of the decree, the decree-holder further prayed in an affidavit setting out the grounds therefor that the execution may be ordered as prayed without first issuing notice as required by Order XXI, Sub-rule 1 of Rule 22. On this petition the Court made the following order on 26 October, 1925. "Notice and arrest and attach". It is clear that in ordering arrest and attachment without notice the Court acted under Sub-rule 2 of Rule 22 of Order XXI but it failed to record its reasons for doing so. On the 27 October the judgment debtor was produced before the Court and he then applied for stay of proceedings in the execution application in order to enable him to move the Appellate Court as well as the Court which passed the decree and obtain a stay order from either of those Courts. In that application he alleged that the decree had been satisfied already and that the application for execution was made fraudulently. On the 2nd November, 1925, the stay applied for was granted on cash security being furnished and the judgment-debtor was then released from custody. On the 1 December, 1925, he presented an appeal to the District Court of Madura against the order of the 26 October, 1925, ordering his arrest without notice. The only ground on which the validity of that order was questioned was that sue lower Court had no jurisdiction to order his arrest without first issuing notice to him as required by r. 22 and that on that ground the order should be set aside. The District Judge dismissed the appeal on the ground that the order appealed from is not an order under Section 47, Civil Procedure Code determining any question arising between the parties and relating to the execution of the decree. In other words, it did not amount a decree as defined in Section 2, Sub-section (2) of the Civil Procedure Code. Against that order this second appeal is preferred.

(2.) On behalf of the appellant it is contended (i) that the order of the District Munsif directing the arrest of the appellant is a decree within the meaning of Section 2, Sub-clause 2, Civil Procedure Code and the District Judge, therefore, erred in not entertaining the appeal. (2) The District Munsif acted without jurisdiction in ordering his arrest without first issuing notice to him under Rule 22.

(3.) In my opinion both these contentions are untenable.