P.T. Raman Nayar, J.
1. I confess I am unable to understand the procedure which unfortunately still persists in the Travancore area of the State, of a judgment-debtor filing his objections to aa application for execution in the shape of an independent petition (which is numbered as a C. M. P.), of the Court deciding the merits of the execution petition on this petition by the judgment-debtor, and of appeals and second appeals being taken, as in this case, from an order upholding or rejecting the judgment-debtor's objection as if that were an order in execution answering the definition of a decree, whereas, the real order in execution is the consequential order, if any, made on the execution petition. However that might be, I am satisfied that even if we regard the appeal and the second appeal in this case as appeals from the order for arrest which has presumably beea passed in the execution petition consequent on the rejection of the appellant judgment-debtor's objection petition, this second appeal is altogether without merits.
There was a prior order for arrest of the judgment-debtor in execution of this very decree, made after notice to him and after due inquiry, and as the lower appellate court has rightly pointed out that order is none the less res judicata regarding the objections he now takes for his having chosen to ignore the notice and absent himself, since the objections are objections he might and ought to have taken in the prior proceeding.
But, it is argued that the finding implied in the prior order regarding the judgment-debtor's means to pay cannot be res judicata since the inquiry now is as to his means to pay now and not then. It is said that, in fact, the judgment-debtor's financial position has considerably worsened since then, and that a fresh inquiry should have been held and the court ought to have satisfied itself of the judgment-debtor's present means before ordering his arrest whether or not the judgment-debtor adduced evidence of his want of means. It ought not to have ordered arrest--we are, of course, assuming that this appeal is against the order for arrest that has presumably been passed and not as it is in fact, from the dismissal of the judgment-debtor's objection petition--without following the procedure prescribed under Order XXI Rule 40 and recording a fresh finding which, it is assumed, it has not done. This argument forgets the clause, 'or has had since the date of the decree' appearing in Clause (b) of the proviso to Section 51 of the Code. The prior order for arrest amounted to a finding that the judgment-debtor had or had had since the date of the decree, the means to pay; and, that being so, the position remains, since the judgment-debtor is bound by that finding, that he has had since the date of the decree, the means to pay.
2. Another objection taken is that the judgment-debtor is a sick person and that therefore he should not Be arrested or detained. But no evidence was adduced in proof of this convenientillness, and the plea was rightly rejected by the courts below. And, as the lower appellate court has pointed out, Section 59 of the Code gives the judgment-debtor another opportunity for falling ill.
3. A third objection is that the decree under execution, a decree on a simple mortgage, is not in accordance with Order XXXIV Rule 6 of the Code in that it has allowed personal execution before there has been a sale of the property. It is true that the decree is against the provisions of Order XXXIV Rule 6--though the decree was made only in March 1961 and Order XXXIV in its present form came into force in the Travancore area of the State in June 1959, the court followed the old Travancore practice of straightaway making a final decree allowing concurrent execution by sale of the mortgaged property and by personal execution, there being no rules in the Travancore Code corresponding to those in Order XXXIV and no Transfer of Property Act -- but, as rightly pointed out by the lower appellate court, this defect cannot make the decree void and is therefore not a defect of which the executing court can take notice.
4. Lastly it is said on the authority of Kommachi Kather v. Pakker ILK 20 Mad 107, Damodar v. Vyanku, ILR 31 Bom 244, Munawar Husain v. Jani Bijai Shankar, ILK 27 All 619 and Thayammal v. Muthukumaraswami, AIR 1929 Mad 881 : C. M. A. 336 of 1927 at p. 884 that even though the decree in this case is a composite decree, the executing court should have waited until the property had been sold and had proved insufficient before ordering personal execution. In the composite decree considered in these capes, like the one upheld by the Judicial Committee in Mt. Jeuna Bahu v. P. Narayan Mahfa, AIR 1918 P. C. 159, the personal decree granted was conditional on the proceeds of the sale of the property being found insufficient, and, naturally, personal execution could be had only after the condition had been satisfied. But, in the present case, the decree allows unconditional concurrent execution against the property mortgaged as also otherwise, and the executing court can only follow the decree.
5. I dismiss the appeal with costs.