Maintainability of execution petition for arrest of surety.

S. RAMACHANDRA IYER, C.J. :- This is an appeal by the second defendant is O. S. No. 35 of 1961 against the order of the Subordinate Judge of Padmanabhapuram, directing execution of the decree, by his arrest. The decree-holder, who is the (first) respondent to this appeal, had advanced certain moneys to one Mohamed Ayoob who was given certain overdraft facilities-by the bank. The appellant guaranteed the payment of the liabilities incurred by Mohamed Ayoob. The latter had also secured certain properties belonging to him to the bank. On his failure to honour his obligations, O. S. No. 35 of 1961 was filed against Mohamed Ayoob as well as the appellant. The latter contested the claim on the ground that he was a surety and in the events that happened he was not liable for the suit claim. Alternatively, he claimed that the decree should be made enforceable against him only if there were to be any surplus left after the sale of the mortgagees properties.

A preliminary decree was passed on 22nd February, 1962. In form, it was a preliminary mortgage decree against the first defendant and the properties with a personal decree against the second. There was also a provision for a passing of the final decree against the first defendant. Clause and of the decree stated :

"It is hereby further ordered and decreed that the second defendant is also liable for this decree amount."

This clause in the decree is not very clear. It. does not, for example, stand in the form of a mandate directing the second defendant to pay the money to the plaintiff. Nor does it say as to when that liability arises, whether the liability to payment should arise at the time when the personal decree against the first defendant is to be passed or even before the mortgaged properties are sold. Clauses 2 to 5 of the decree appear to provide for the passing of a personal decree against the first defendant if the money realised by sale in execution was not found sufficient to satisfy the amount due to the creditor.

There being this ambiguity under paragraph 6 of the decree, it is essential to refer to the judgment in the case. That states that a preliminary decree on the mortgage will be passed and the first defendant will be given six months time for payment. A separate decree is passed against the second defendant. The judgment is not very clear as to whether the liability of the second defendant under the decree was to be concurrent with the liability of the mortgaged properties. But a reading of the judgment as a whole would appear to lead us to the conclusion that it was only after the mortgaged properties were exhausted, and when the question of personal liability of the first defendant is to be taken up, there should be available the personal decree against the second defendant-appellant to pay the amount.

2. The Bank however, did not proceed to execute the decree against the properties of the first defendant in the first instance. It applied for execution by way of arrest of the second defendant. The lower Court has ordered the arrest.

3. In this appeal against the order of the executing Court, Mr. R. Gopalaswami Aiyangar first contended that, as there has been no refusal lay the appellant to pay the moneys due under the decree, the execution application was premature. "We are, however, unable to agree with that contention. After the filing of the execution, the appellant filed a counter affidavit, objecting to his liability to pay the decree amount, as, according to him, the execution petition was premature. If the execution application were held to be maintainable, that would certainly amount to a refusal to pay.

It was next argued that, as the appellant had not the means to pay the money due under the decree, no personal execution should be levied against him. It is admitted that the appellant is in possession of considerable properties which would easily enable him to pay of the decree, But what is argued is that the word means occurring in Section 51 shoul