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Execution Application No. 64 of 1967/Suit No. 91 of 1965, decided on 1st April 1968.

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----S. 51, O. XXI, rr. 21 & 30‑Execution of decree‑Decree in terms of award made rule of .Court‑Award prescribing manner of payment of amount due and mentioning that till entire amount paid two houses belonging to judgment‑debtor were to remain security in favour of decree‑holder- Decree remaining unsatisfied Application for execution of decree‑Objection that property of judgment‑debtor other than that charged could neither be attached nor sold in execution‑Held, notwithstanding charge created in their favour decree‑holders not debarred from seeking execution of decree in any other manner permissible under law‑Refusal under O. XXI, r. 21 to order simultaneous execution both against person and property of judgment‑debtor‑Exception rather than rule.

Ramabai Balkrishana Hasabnis v. Janardan Eknatli, Hasabnis and another A I R 1943 Bom. 158 not fol.

Ramchandrarao Gangadharrao and another v. Vithal Keshav A I R 1948 Bom. 143; Gurappa Gurushiddappa Neeli v. Amarangi Vanichand A I R 1941 Bom. 90 and Hargobind Kishan Chad v. Hakim Singh & Co. A I R 1926 Lah. 110 rel.

Iqbal Kazi for Applicants.

Sabir Hussain Rahmani for Defendants.

Dates of hearing : 29th and 31st January 1968.

The decree‑holders filed Execution Application, dated the 11th day of October 1967, seeking the execution of their decree passed against the judgment‑debtors by the attachment of mov ables, books, furniture and fittings lying at their premises "Book Corporation" at Arambagh Road Karachi, under Order XXI, rule 43 of the Civil Procedure Code. They further prayed for the attachment of Houses No. 1148 and No. 1149, Pir Illahi Bukhsh Colony. Karachi, belonging to respondent No. 2, under Order XXI, rule 54, C. P. C, On the 6th day of November 1967, the Court granted that application and in consequence the aforesaid properties were attached.

2. On the 23rd day of November 1967, the judgment‑ debtors filed an application under Order XLI, rule 6 read with section 151, C. P. C. praying that, the aforesaid attachment order be withdrawn against the security of immovable property, which they were prepared to furnish to the satisfaction of the Court. Simultaneously they filed objections under section 47, C. P. C against the execution application. The matter came up for hearing on 16th January 1968 when the objections of the judgment‑debtors were partly heard, but their further considera tion was adjourned at the request of their learned counsel, as he wanted to consider the legal implications of the arguments advanced by the learned counsel for the decree‑holders. The judgment‑debtors filed additional objections on 29th January 1968, and thereafter the matter again came up for hearing on 29th and 31st January 1968, when the learned counsel for the parties were beard only in regard to the objections filed by the judgment‑debtors and the consideration of their application: under Order XLI, rule 6 read with section 151, C. P. C. was deferred until a decision was given on their objections. In order to appreciate their respective contentions, it would be expedient to recall the brief facts of the case.

3. The parties were partners in two businesses, viz. Central. Printing Press and "Book Corporation". After disputes having arisen between them, they referred their disputes to two arbitrators, namely. Mr. Sayeed‑ur‑Rehman Qurashi and Mr. Shaikh Hyder, and Advocates of this Court who delivered a consent award on the 30th day of May 1964. In terms of that award, a sum of Rs. 54,366‑10 became payable to the decree‑holders and the mode of its payment was provided is para.10 of the award in this manner :‑

(1) Rs. 4,366‑10 (Rupees four thousand three hundred sixty- six and paisas ten only) payable by or before the 1st day of July 1964.

(2) Rs. 25,000.00 (Rupees twenty‑five thousand only) by or before .the 31st day of December 1964.

(3) Rs. 25,000.00 (Rupees twenty‑five thousand only) by or before the 30th day of June 1965..

In para. 4 of the award, it was provided that, so long as the entire amount was not finally paid, two Houses No. 1848 and No. 1849 situated at Pir Illahi Bukhsh Colony, Karachi, belonging to respondent No. 2, were to remain as security in favour of the decree‑holders.

4. The award in question was filed in the Court against which objections were filed by the judgment‑debtors and, after the usual proceedings, it was made a rule of the Court by an order, dated the 6th day of February 1967. In due course, a decree was drawn up in terms of that award. The judgment -debtors filed a Letters Patent Appeal against that decree which was admitted to regular hearing by a Division Bench of this Court. The learned Bench was also pleased to stay execution of the decree on the condition that the judgment‑debtors were to deposit the entire decretal amount in Court. However, they failed to deposit that amount, and, in the result, the decree- holders filed the present Execution Application.

5. Mr. Sabir Hussain, the learned counsel for the judgment -debtors pressed only one objection, from amongst the manifold written objections which he filed. That objection was that the decree‑holders, having accepted a charge on immovable property of two Houses No. 1848 and No. 1849, Pir Illahi Bukhsh Colony, Karachi, were obliged to seek the recovery of their decrotal amount first by executing their decree against that property, and thereafter against any other property of the judgment‑debtors, but only if their decree was not fully satisfied from the properties, which were the subject‑matter of security. In effect, his argument was that "Book Corporation" the business premises of the judgment‑debtors, could neither be attached nor sold in execution of the decree, so long as the decree‑holders had not exhausted their remedy against the aforementioned two houses, which were charged in their favour. In support of that contention, the learned counsel relied on a judgment Ramabai Balkrishana Hasabnis v. Janardan Eknath Hasabnis and another (A I R 1943 Bom. 158). In that case, the facts were these: According to an agreement, the plaintiff was to be paid her maintenance of Rs. 180 per year and, by way of security, a charge was created in her favour over certain properties. The judgment‑debtor failed to pay the agreed maintenance and, therefore, the decree-holder filed an Execution Application, seeking the recovery of her dues from certain moneys belonging to the judgment‑debtor. In the alternative, she prayed that, if those‑ moneys were not available for the satisfaction of her claim, then some of the charged properties .be sold and her claim satisfied from the sale proceeds thereof. The executing Court passed an order of attach ment of the moneys belonging to the judgment‑debtor, notwith standing his objection that decree‑holder was first obliged to proceed against the charged properties before she could resort to any other method of execution. The judgment‑debtor filed an appeal against that order, which was set aside by the Appellate Court, on the ground that the decree‑holder was obliged firstly to proceed against the charged properties before she could seek the execution of her decree from any other properties of the judgment‑debtor. That judgment of the learned Single Judge was dissented from by a Division Bench of that Court in a judgment reported as Ramchandrarao Gangadharrao and another v. Vithal Kashav (A I R 1948 Bom. 143) who relying on a decision of the Full Bench of the Bombay High Court reported as Gurappa Gurushid dappa Neeli v. Amarangji Vanichond (A I R 1941 Bom. 90) held:

"But with respect it seems to us that the learned Judge overlooked the principle underlying the decision of the Full Bench, as well as some of the words which were used. The principle underlying it is that the object of a charge is primarily for the benefit of the creditor, and the actual words used in part of the judgment are these:

That seems to me to be the object of a charge; not to regulate the order in which the defendant's property is liable to be attached. Taking Cl. (1) of this decree, it is perfectly plain that it amounts to an order for payment, and if such clause stood alone, it would be enforced by any of the methods authorised by the Civil Procedure Code including attachment and sale of any of the defendant's property. There is nothing in the rest of the decree which expressly takes away or limits .that right, and I can see no reason why it should be held that the plaintiff by implication has deprived himself of that right or delayed its enforcement'."

It appeared that the learned counsel for the judgment‑debtors failed to notice that the judgment, on which he relied, was expressly disapproved by a latter Division Bench Judgment of that Court. In fact, the aforesaid Full Bench Judgment of that Court had finally decided the question now under discussion beyond any doubt and, therefore, his reliance on the case of Ramabai Balkrishna Hasnbnis v. Janardan Eknath Hasabnis and another was misconceived and was of no assistance to the case of the judgment‑debtors. With respect, I agree with the view expressed in the aforesaid Division and Full Bench judgment of the Bombay High Court and hold that, notwithstanding the charge created in favour of the decree‑holders, they were not debarred from seeking the execution of their decree in any other manner permissible under law. The learned counsel for the judgment‑ debtors referred to a few other judgments from the Indian Courts, but, since the point under discussion is fully covered by the aforesaid judgments of the Bombay High Court they need not be referred to which, in any case, were not directly on the point.

6. Mr. Iqbal Qazi, the learned counsel for the decree‑holders ‑ relied on section 51 and Order XXI, rule 21, C. P. C. in support of the Execution Application. Section 51 gives jurisdiction to the Court to allow the execution of a decree in any of the modes provided thereunder, except that, when the decree is for the payment of money, its execution by detention in prison of the judgment‑debtor shall not be ordered, unless he was given an opportunity of showing cause. It is true that Order XXI, rule 21, C. P. C. gives discretion to the Court to refuse the execution of decree against the person and property of the judgment debtor at one and the same time, but in a judgment reported as Hargobind Kishan Chand v. Hakim Singh & Co. (A I R 1936 Lah. 110) that rule was interpreted to mean: "that the refusal of simultaneous execution should be exception rather than a rule". With respect I agree with these observations. In the instant case, I have not been able to find any reason as to how the execution application could properly be refused. No other point wash urged, or, argued by the learned counsel for the parties.

7. In the result, the judgment‑debtors' objections dated 23‑11‑1967 and 29‑1‑1968 are dismissed with costs.

K. B. A. Execution allowed.

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