The decree-holder must satisfy the court of the existence of statutory conditions for personal execution, and personal execution is not a penalty for non-payment but to enforce payment of the decree.

Judgement-debtors are the revision petitioners. Revision is directed against an order rejecting their objection to personal execution on the ground of no means and ordering warrant against them.

2. Decree is for payment of money. First defendant is said to be the principal debtor and second defendant the surety. But it is undisputed that under the suit document as well as under the provisions of the decree they are jointly and severally liable.

3. Pursuant to notice under O.21, R.37 both of them filed objection stating that they are not liable to personal execution because they have no means to pay the decree amount or any portion of it. In the affidavit filed by the decree-holder there was an allegation that first defendant is having a business and income from it and hence he has means to pay the decree amount. In the counter-affidavit the first defendant did not specifically say that he has no business but said he has no income and means to pay the decree debt and therefore he is not liable to be arrested and detained.

4. Without calling upon the decree-holder to adduce evidence or taking or considering any evidence from him the learned Subordinate Judge said :

"In allegation of the petitioner that the first respondent is having a business is not specifically denied. That means, the first respondent is having a business and if the first respondent is having a business, it is up, to him to prove the volume of business. That having been not done, an adverse inference will have to be drawn against him. Thus as far as the first respondent is concerned his plea of no means falls to the ground. I, therefore,

hold that the first respondent is possessed of sufficient means to pay the decree debt".

The objection of the second defendant was disposed of on the following terms :

"The first respondent is the principal debtor and second respondent is the surety. It is well settled proposition of law that plea of no means to a surety is not available. Plea of no means is, therefore, unavailable to a surety and that being so, the contention of the second respondent that he cannot be proceeded with by arrest and detention in civil prison cannot be countenanced with".

5. These "well settled propositions of law" came from a senior civil judicial officer. In the first place when the decree is for payment of money jointly and severally against two or more defendants there is no question of one being a principal debtor and the other a surety. Both are equally liable for the entire amount and the decree-holder is entitled to realise the amount from any of them. Even on the basis of the document creating

liability the creditor need not be concerned with who is the principal debtor and who is the surety so long as the liability is co-extensive. There cannot be any discrimination between them in the matter of liability, of course depending on the terms of the document of transaction creating liability. If in this case second defendant has any claim against the first defendant on account of payment of the decree amount that is not a matter arising in execution and it has to be enforced elsewhere. I am not aware and I was not shown any "well settled proposition of law" that in a money decree personal execution could be ordered against a person without affording him an opportunity to show cause why he should not be committed to the civil prison and when he shows cause, without the requisite satisfaction, simply on the ground that he is a surety. From where the execution court got the inspiration of the "well settled proposition of law" is not known. If such a legal proposition is accepted the position of a surety must be taken to be worse than that of the principal debtor. In preference to the principal debtor it may be in favour of the surety that Courts may in deserving case be inclined to show some equity.

6. Under S.51 of the Code of Civil Procedure when the decree is for payment of money, execution by detention in prison shall not be ordered unles