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P.M. Mohammad Usman Co., Through Its Managing Partner B.P. Usman Vs. Kottekkaran Kunhamu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1943Mad366; (1943)1MLJ87
AppellantP.M. Mohammad Usman Co., Through Its Managing Partner B.P. Usman
RespondentKottekkaran Kunhamu
Excerpt:
- .....the petitioner is the decree-holder. he succeeded in obtaining an order under order 38, civil procedure code, for the arrest of the judgment-debtor before judgment. the defendant found surety under order 38, rule 2. the surety, after decree, applied for his discharge under order 38, rule 3. the conditions were complied with and the surety was discharged. then, the court should have called upon the defendant to find further security. this was not done. consequently rule 4 does not apply. the court appears to have thought that the decree having been passed, order 38 was no longer applicable, but that something in the nature of proceedings under section 51 of the code of civil procedure were.2. in my opinion, this view is erroneous : the arrest was made under order 38, and proceedings.....
Judgment:

Bell, J.

1. The petition must succeed to this extent. The petitioner is the decree-holder. He succeeded in obtaining an order under Order 38, Civil Procedure Code, for the arrest of the judgment-debtor before judgment. The defendant found surety under Order 38, Rule 2. The surety, after decree, applied for his discharge under Order 38, Rule 3. The conditions were complied with and the surety was discharged. Then, the Court should have called upon the defendant to find further security. This was not done. Consequently Rule 4 does not apply. The Court appears to have thought that the decree having been passed, Order 38 was no longer applicable, but that something in the nature of proceedings under Section 51 of the Code of Civil Procedure were.

2. In my opinion, this view is erroneous : The arrest was made under Order 38, and proceedings must continue under that order. The Court must therefore call upon the defendant to find fresh security under Rule 3 and if he fails to comply with that or any other order under Rule 2 or 3, the Court has a discretion in committing him to prison. How it exercises that discretion is not a matter for me, but the case must go back to the lower Court for this procedure to be followed.

3. The petition will be allowed with costs.


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