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1964 Supreme(Ker) 335

P.T.RAMAN NAYAR
Ramachandra Iyer – Appellant
Versus
Mathai – Respondent


Judgment :-

1. In this case there was an inquiry as to means under R.40 of Order XXI of the Code after notice to the judgment-debtor under R.37(1), and the concurrent finding of fact of the courts below is that the requirement of clause (b) of the proviso to S.51 (the only requirement pleaded) for execution by detention in prison was not satisfied. The courts below were therefore quite right in dismissing the appellant decree-holder's application for the arrest and detention of the respondent judgment-debtor, and: the decree-holder's appeal from the dismissal on the score that the proviso applies, only to detention and that the judgment-debtor should have been arrested though not detained is as misconceived as his reliance on the decisions in Londa Abbayee of Pithapuram v. Badam Suryanarayana & Others (AIR. 1948 Madras 9), B.K. Puttaramiah v. H.I.E. & Sons (AIR 1959 Mysore 94) and Madhusudan v. Trimback (AIR, 1961 Bombay 23) is misplaced. It is quite clear from S.51 that arrest by itself is not execution any more than Attachment: by itself is. It is only a preliminary process for detention just as attachment is, for sale; Detention in prison is the real execution under clause (c) o


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