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Damodar Shaligram Vs. Malhari and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom106
AppellantDamodar Shaligram
RespondentMalhari and anr.
Excerpt:
.....a decree',execute a decree,'enforce a decree',are used as well where the decree is being executed in part as in its entirety. this may be so, but the section is one clearly intended to operate in restriction of the power of arrest and in favour of personal liberty, and should be construed according to the plain meaning of the terms. it is to be remarked that decrees for payment of money by instalments are distinctly recognized by section 210, and express provision is made for them in section 290 in fixing the time within which execution must be applied for, and if there was any intention that the term 'decree' should have other than its ordinary meaning in the application of section 341 to the execution of such decrees, we should expect that it would have been clearly expressed......under which the judgment-debtor is entitled to be discharged from jail, says: 'a judgment-debtor discharged under this section is not thereby discharged from his debt, but he cannot be re-arrested under the decree in execution of which he was imprisoned.' this section read in connection with the definition of a decree as given in the interpretation clause shows a clear intention on the part of the legislature that the judgment-debtor should not be imprisoned more than once under the same decree pronounced by the court as its adjudication of the rights of the parties. but it may be said that in the case of imprisonment in default of payment of an instalment, a portion only of the decree is executed, that being the only part of the decree at the time capable of execution. sections.....
Judgment:

Charles Sargent, Kt., C.J.

1. In this case the plaintiff obtained a decree on 29th June, 1881, directing that he do recover from the defendants the sum of Rs. 60 payable in three annual instalments, each defendant to be liable for half of each instalment, with all costs on the defendants. The plaintiff obtained warrant of arrest against the defendants on 23rd September, 1881, for the amount of the costs, under which the defendant, Malhari, was arrested and brought before the Court on 12th October, 1881. The next day he was discharged at the request of the plaintiff. The first instalment became due on 17th May, 1882, and the plaintiff now seeks to recover it by arrest and imprisonment from both defendants. The questions referred to us are:

1. Whether in the execution of an instalment decree, the judgment-debtor can be arrested and imprisoned separately for default in the payment of each instalment?

2. If he can be, whether in limiting the term of imprisonment, the amount of the particular instalment sought to be recovered or of the whole judgment-debt should be taken into account?

2. Section 341 of the Civil Procedure Code (X of 1877) after enumerating the circumstances under which the judgment-debtor is entitled to be discharged from jail, says: 'A judgment-debtor discharged under this section is not thereby discharged from his debt, but he cannot be re-arrested under the decree in execution of which he was imprisoned.' This section read in connection with the definition of a decree as given in the interpretation clause shows a clear intention on the part of the Legislature that the judgment-debtor should not be imprisoned more than once under the same decree pronounced by the Court as its adjudication of the rights of the parties. But it may be said that in the case of imprisonment in default of payment of an instalment, a portion only of the decree is executed, that being the only part of the decree at the time capable of execution. Sections 224 clause b; 230 and 235, clause c, show, however, that the terms' execution of a decree', 'execute a decree,' 'enforce a decree', are used as well where the decree is being executed in part as in its entirety. It was urged that to apply the section where the decree is such that it can only be executed at intervals as the instalments fall due would be to embarrass the judgment-creditor, and seriously affect his power of enforcing his decree by arrest. This may be so, but the section is one clearly intended to operate in restriction of the power of arrest and in favour of personal liberty, and should be construed according to the plain meaning of the terms. It is to be remarked that decrees for payment of money by instalments are distinctly recognized by Section 210, and express provision is made for them in Section 290 in fixing the time within which execution must be applied for, and if there was any intention that the term 'decree' should have other than its ordinary meaning in the application of Section 341 to the execution of such decrees, we should expect that it would have been clearly expressed. The difficulty which has been suggested in the case of instalment decrees may be obviated by the decree, providing that, in default of payment of an instalment, the whole debt should become payable, and this Court has frequently remarked upon the propriety, generally speaking, of inserting such a provision. The first question must, therefore, be answered in the negative.


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