Court cannot declare committal to prison on the ground that decree-holder should in first instance proceed against property of the judgment-debtor.

The Revision Petitioner in both the revisions is the judgment‑debtor/defendant in O.S.No.18 of 1998 and O.S.No.15 of 1998. The respondents are the respective plaintiff in both the suits.

2. The respondent/plaintiff in both the suits obtained decree in the said suits. After obtaining decree, they filed Execution Petitions respectively in E.P.Nos.13 and 19 of 2005 on the file of the learned Subordinate Judge. Kuzhithurai, under Order 21, Rules 37 and 38 of Code of Civil Procedure to arrest the judgment‑debtor for realisation of the decree amount. The learned executing Court passed an order on 6.9.2005 ordering the arrest of the judgment debtor by 27.9.2005. The impugned order reads as follows:

“Part satisfaction for Rs.15,000 recorded. Arrest by 27.9.2005."

Challenging the order of the executing court, the judgment‑debtor in both the Execution Petitions, has filed the Civil Revision Petitions.

3. The case brings forcibly to mind the dictum of their Lordships of the Privy Council in Court of Wards v. Maharajah Kumar Ramaput, 14 Moo Ind App 605 at p.612 (A), that the woes of an Indian litigant begin only after he has obtained a decree.

4. Learned counsel appearing for the petitioner in both the Revision Petitions has submitted that the order of Executing Court is not correct on to grounds, firstly, the decree holder must have filed a petition for attachment of property, then only he can file a petition for arrest; secondly, the Executing Court has not recorded the reasons for ordering arrest.

5. In support of his contention, learned counsel for the petitioner relied on the following decisions:

In K.M. Kannu Gounder v. Mahboob Ali Sahib and another, 2003 (2) MLJ 329, the Principal ‑Bench of this Court has held that-

"so far as the choice whether the decree holder could adopt and file Execution Petition for attachment or for arrest is concerned in the recent times, it has been arrived at by the upper forums of law that prior to embarking upon arrest the other procedures kept open, such as attachment, etc. should be exhausted,"

6. In Ganesa Nadar, v. K. Chellathaiammal, 1987 (100) LW 431, it is mentioned in the head note as follows:

"C.P.C., 51 (c) and Order 21, Rule 38 ‑ Arrest ‑ Refusal or neglect to pay, what is ‑ Merely because J.D. is paying meagre amounts, or he did not file a counter, or because he possesses immovable property, and order for arrest cannot be made ‑ Arrest cannot be sought as a lever to force payment without taking recorse to proceedings for attachment and sale of immovable property."

and held as follows:

"It is open to the decree holder to file a petition for attachment and sale of the immovable property. The decree holder in this case has not taken recourse to those provisions. It is obvious that he is utilising the provisions of Order 21, Rule 38, C.P.C., merely as a lever to force payment without taking recourse to the proceedings for attachment and sale of the immovable property."

7. In those decisions, it was pointed out that the decree holder must proceed against the property of the judgment‑debtor prior to embarking upon his arrest.

8. The claim of the petitioner was resisted by the learned counsel for the respondent in both the revisions. He submitted that the respondent/decree holder can choose any mode of execution and he cannot be compelled to file a petition for attachment only.

9. To strengthen the case of the respondent in both the revisions, the learned counsel relied on the following decisions:

In Hargobind Kishan Chand v. Hakim Sing and Co., AIR 1926 Lahore 110, it has been held that­

"the statutory law leaves no doubt whatsoever that it is for the judgment‑creditor to decide whether he should execute the decree for the payment of money by the arrest of judgment debtor or by the attachment and sale of his property, or both; and that while the Court has discretion to refuse execution against the person and property simultaneously, it has no authority to decline to make an orde