AIR 1957 MADRAS 777 ::1957 1 MadLJ208

Madras High Court

Hon'ble Judge(s): Ramaswami , J

Civil P.C. (5 of 1908) , S.51, O.21 R.21, O.21 R.30, O.21 R.40— Simultaneous execution. Evidence Act (1 of 1872) , S.101, S.102, S.103, S.104— Simultaneous execution both against the property and person of the judgment-debtors is allowed under O. 21, R. 30, C. P. C. But the Court has a discretion under O. 21, R. 21, C. P. C. to refuse simultaneous execution and to allow the decree-holder to avail himself of only one mode of execution at a time. Where a decree-holder presses for arrest of the judgment-debtor, the Court cannot, except as provided by the proviso to S. 51, C. P. C compel the decree-holder to proceed against his property or to accept payment by instalments. The Court is to follow the procedure prescribed under O. 21, R. 40, C. P. C. and then find if it is satisfied on the evidence that the instant case before it falls within any of the clauses in the provisos (a) to (c) of S. 51. If the case falls within any of the clauses of the proviso then Court has to record its reasons in writing that the judgment-debtor should be committed to prison for one of the five reasons set out therein. If the cause is insufficient the Court is bound to order arrest. If on the other hand the decree-holder fails in the discharge of his burden to prove that the circumstances specified in the section exist, the Court is equally bound to reject the applica....