1. This appeal is by the decree-holder. He has applied for execution of a decree for rent by the arrest of the respondent. The respondent filed an objection under Section 47, Civil P.C., on two grounds : (1) that his case comes within the proviso to Section 51, Civil P.C., and (2) Section 168A is a bar to the execution. The objection was overruled by the Munsif, but it has now been allowed by the Subordinate Judge in appeal. On the former point, the contention of the respondent was that he had no means to pay the decretal amount. On this point, the Courts below have differed. On behalf of the appellant Mr. Chakravarty has pointed out that the finding of the learned Judge is defective, because he ignored the words 'or some substantial part thereof.'
2. With all due respect to the learned Judge I find it very difficult to follow his judgment. The respondent admitted that he had two bighas of land and a house on it. The learned Judge merely observed that two bighas of land and a house on it may be worth much less than Rs. 71. To me it seems quite inconceivable that such a property would not be worth a great deal more than this sum. In his evidence the respondent was not trying to make out that this property was worth much less than Rs. 71. He was trying to make out that he could not pay out of the usufruct. But if the learned Judge seriously thought that the property was worth less than Rs. 71 he should have given the appellant an opportunity to examine a valuer and I have no doubt whatever that, if he had done so, the first person to object to such a waste of costs would have been the respondent. It is really quite impossible to support the finding o the learned Judge on this point. Then again the learned Judge has found that the respondent has an interest in the tenure for which the rent is due and this is worth the decretal amount many times over. This was the evidence of the respondent himself and it is quite idle to suggest that he is not in a position to pay. There remains the second objection. The relevant words are these:
Shall not be executed by the attachment and sale of any moveable or immovable property than the entire tenure or holding to which the decree relates.
3. Under Section 51(b), Civil P.C., the Court may order execution of the decree by attachment and sale of any property. This right is cut down by Section 168A, Ben. Ten. Act. To say that other modes of execution, which are not referred to in the section are also prohibited one must read into it something which is not there. The appeal is allowed, the order of the lower appellate Court is set aside and that of the Munsif restored. The respondent will pay the costs of the appellant in the lower appellate Court. As he has not appeared in this Court I make no order as to costs here.