1. The appellants held a preliminary mortgage decree against the respondent and others, whose appeal to this Court was dismissed with costs. The appellants thereupon sought to execute their decree for the costs awarded in this Court by arresting the respondent (defendant 2). The learned Subordinate Judge in a very short order agreed with the contention of the appellants that defendant 2 was liable personally for costs; but he passed an order that the appellants should first proceed against the hypo-theca, then sell the attached properties (not included in the hypotheca), and that if all these properties were not sufficient, arrest might again be applied for. The appellants claim to be aggrieved, because the learned Subordinate Judge did not consider the various points put forward by them in their affidavit as reasons why the respondent should be arrested.
2. Under Section 51, Civil P. C, the Court is bound to refuse to arrest a judgment-debtor under certain contingencies; and as the learned Judge has not considered whether that proviso applies, we must assume for the purpose of argument in this appeal that the appellants were not debarred from executing their decree by arrest because of the reasons given in the proviso to Section 51, Civil P. C. Even though the decree-holders were not debarred from executing their decree because of the proviso to Section 51, Civil P. C., it does not in my opinion prevent the executing Court from exercising a discretion whether or no it will order arrest.
It is true that Order 21, Rule 17 (4), Civil P. C., says (that:
When the application is admitted....the Court shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application;
but O.21, R.40 (3) says that after hearing the decree-holder (for the purpose of seeing whether the judgment-debtor can claim exemption)
the Court may, subject to the provisions of Section 51 and to the other provisions of this Code, make an order for the detention of the judgment-debtor. . . .
It is contended by the learned advocate for the appellants that the word 'may' here does not imply a discretion. I am reluctant to interpret this rule as meaning something different from what the words suggest. Moreover in Order 21, Rule 37, Civil P. C., we find that where the judgment-debtor does not appear in obedience to the notice of the Court issued upon an application for arrest being made, ' the Court shall if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.' It, therefore, seems, reading Order 21, Rule 37 and Order 21, Rule 40 together, that the Court has no discretion where the judgment-debtor does not appear, but that it has a discretion where the judgment-debtor does appear. The learned advocate for the appellants relies on Hargovind Kishanchand v. Hakim Singh & Co A.I.R. 1926 Lah. 110, as indicating that the wording of Order 21, Rule 17 above referred to leaves no discretion to the Court, that the decree-holder has a choice as to the method of execution, and that the Court is bound to act in accordance with his request, unless he asks for simultaneous execution in two different ways, when the Court may proceed in execution by one way alone. I do not however think that the learned Judges in Hargovind Kishanchand v. Hakim Singh &Co; A.I.R. 1926 Lah. 110 laid down quite such a wide principle as Mr. Satyanarayana Rao suggests. They were dealing with a case in which a simple money decree was being executed. The prayer was for the arrest of the judgment-debtor or for the attachment and sale of his property; and the learned Judges held that the reason given by the lower Court, viz., that the decree-holder had an alternative remedy was not a sufficient reason for refusing the arrest of the judgment-debtor. There can be no doubt that where a simple money decree is being executed the decree-holder ought not to be refused execution by way of arrest; but it seems to me rather different where a mortgage decree is being executed. In this case, the decree-holders held a personal decree for costs against the judgment-debtor; and there can be no doubt that one of the ways in which they can execute that decree for costs is by way of arrest of the judgment-debtor. At the same time, they have necessarily to execute their mortgage decree only by sale of the hypotheca; and if it is possible to realise the costs of the appeal in the same way, then it would seem unnecessary to order the arrest of the judgment-debtor also. I am not prepared to say therefore that the learned Judge had no jurisdiction to pass the order he did.
3. I am told from the bar that subsequent to the passing of the order appealed against the hypotheca has been sold and has not realised a sufficient sum to discharge the whole of the decree debt. If that is so, then the appellants will necessarily have to execute their decree for the balance of the decree amount person-ally against the judgment-debtor. So, whatever may be the order I pass in appeal, it will not affect the remedy of the appellant. In the light of subsequent events, it appears that the appellants were justified in saying in their application that it would be impossible for them to realise the costs by the sale of the hypotheca; but the learned Subordinate Judge was not in a position to be sure of that at the time when he passed his order. Since it may be possible to argue that as a result of the order of the Subordinate Judge the attachment of the other property was automatically raised, it will hereby be ordered that the attachment should continue. Under the circumstances, the appeal is dismissed without costs.
4. A.A.O. No. 89 of 1943. - This appeal was against an order refusing to consider an application for the attachment of moveables. Much the same can be said with regard to this application as to the application considered in A.A.O. No. 12 of 1943. This appeal has been rendered fruitless by ,the subsequent sale of the hypotheca. The learned Judge has ordered the petitioners to renew their application if necessary after the hypotheca has been sold. As the hypotheca has now been sold, the appellants, even if they were to succeed in this Court, would have to comply with the learned Judge's order. This appeal is also dismissed without costs, except that it is ordered that the attachment of such properties as had beer already attached shall continue.