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Ghanashamdas Goorsamull Vs. Joharimull Kedarinath - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom431
AppellantGhanashamdas Goorsamull
RespondentJoharimull Kedarinath
Excerpt:
arrest before judgment - subsequent arrest in execution--period of imprisonment--civil procedure code act xiv of 1882, sections 481 and 342. - - justice west, the sitting judge in chambers, and by an order of that date it was ordered, under section 481 of act xiv of 1882, that the sheriff do detain the defendant in his custody until he do give good and sufficient security in himself and two sureties, to the satisfaction of the prothonotary for any decree that might be passed against him. 7. it is clear, therefore, that an arrest under section 481 becomes, after decree, an arrest until the decree is satisfied or wholly executed......six months as from the 6th march, 1883, or until further order; and, for the reasons above given, we are of opinion that, under the circumstances of the case, he cannot be detained in custody after he has completed six calendar months imprisonment from the 6th march last, the date of the decree, and that he will, accordingly, be entitle to be released from jail on the 5th september next.
Judgment:

Bayley, Acting, C.J.

1. Joharimull Kedarinath, a prisoner on the civil side of H.M.'s Common Jail in Bombay, by a petition, dated the 1st August instant, stated that he had been arrested in Suit No. 37 of 1883, brought on the ordinary original civil jurisdiction side of the High Court, under a warrant of arrest before judgment on the 3rd February, 1883, and had been since then undergoing imprisonment on the civil side of the jail; and be submitted that, under the provisions of the Civil Procedure Code, he would become entitled to his release on the 2nd August instant. He stated that he had, however, been served with a warrant of arrest after judgment in the above mentioned suit on the 28th July last (which, we find was marked for the levy of Rs. 2,831-2-9), had been produced before the sitting Judge in chambers, and had again been committed to jail from the date of the decree, which was passed on the 6th March, 1883. He then submitted that, under the provisions of the Civil Procedure Code, a man cannot be detained in jail for more than six calendar months, whether he undergoes imprisonment under a warrant of arrest before or after judgment; and he concluded by praying that he might be released from jail.

2. Mr. Justice Latham, the sitting Judge in chambers, having mentioned the matter to me, and it being desirable that the question raised in the petition, there being no express decision in this Court upon the point, should be settled, so that there might in future be uniformity of practice, and the matter being one involving the liberty of the subject, the case was heard by Mr. Justice Scott, Mr. Justice Latham, and myself, when Mr. Inverarity appeared, as amicus curice, to argue on behalf of the petitioner, while Mr. Lang represented the plaintiff in the suit.

3. The question turns upon Sections 481 and 342 of the Code of Civil Procedure, Act XIV of 1882. (The learned Judge then referred to the language of those sections; see note, ante, p. 431.)

4. In the present case the defendant was arrested and taken to jail on Saturday, the 3rd February, 1883, at about 7 p. M., under Section 478, which is one of the sections of the chapter headed 'Arrest before judgment'. On Monday, the 5th February, he was brought before Mr. Justice West, the sitting Judge in chambers, and by an order of that date it was ordered, under Section 481 of Act XIV of 1882, that the Sheriff do detain the defendant in his custody until he do give good and sufficient security in himself and two sureties, to the satisfaction of the Prothonotary for any decree that might be passed against him.

5. Although a form of order for committal under Section 481 is expressly given in the fourth schedule to the Act (Form No. 159) such order was, not followed in the present case, but the imperfect and inaccurate one was adopted which we have referred to and which was said to have been drawn up in the Sheriff's office according to the form always adopted in such cases. It is desirable that in future the correct form (No. 159) be adhered to.

6. Section 481 says that, if a defendant fails to comply with any order made under Section 479 (the section under which a defendant, failing to show cause, may be ordered either to deposit in Court money or other property sufficient be answer the claim against him, or to give security for his appearance at any time when called upon while the suit is pending and until execution or satisfaction of any decree that may be passed against him in the suit) or Section 480 (the section giving the procedure to be followed in case of an application by the surety to be discharged), the Court may commit him to jail 'until the decision of the suit, or, if judgment to given against defendant, until the execution of the decree.' The order for committal under Section 481, being Form No. 159 in the fourth schedule to the Act--the form which ought to have been used in the present case, but was not--adopts the same words. The use of the forms in such schedule is directed by Section 644 of the Act. The meaning of the words 'until the execution of the decree' is somewhat obscure, and counsel on both sides addressed the Court at some length upon the proper construction to be placed upon them. It appears to us, however, that the obscurity is cleared up when this Section 481 is read with Section 478 and with the form of the warrant of arrest before judgment (No. 158 in the fourth schedule) made under Section 478, which is the first step in the process of arrest under this chapter. There the defendant is ordered to be brought before the Court to show cause why he should not furnish security for his personal appearance until the suit shall be fully and finally disposed of, 'and until execution or satisfaction of any decree that may be passed.' And, as already noticed, under Section 479 he may be ordered to deposit money or give security for his appearance 'at any time when called upon while the suit is pending, and until execution or satisfaction of any decree, that may be passed against him in the suit.' Then follows Section 481, which is the next step in the same proceeding, and has no' independent raison d'etre. It cannot be supposed that the Legislature in those circumstances used the word execution in two different senses. We think it is clear that the words 'Until the execution of the decree' in the latter section are the same in meaning and intention as the words 'until execution or satisfaction' in the Form No. 158 in the fourth schedule and in Section 479. Execution used in such a conjunction of terms must mean complete execution. Therefore in this chapter the word has its primary meaning of possession being given to the plaintiff of what is ordered, by the decree. Lord Coke defines the word thus: 'Execution, executio, and signifieth, in law the obtaining of actual possession of any thing acquired by judgment of law' Co. Litt. 154a, In 'Wharton's Law Lexicon, p. 2.78, 'execution' is described as the last stage of a suit giving possession of anything recovered at law or inequity.

7. It is clear, therefore, that an arrest under Section 481 becomes, after decree, an arrest until the decree is satisfied or wholly executed. Such imprisonment in no way differs from imprisonment in execution of a decree. The sole object, which the holder of a money decree can legitimately have in view, whether he imprisons his debtor after decree, under Section 336, or retains him in prison under Section 481, is the payment of the judgment-debt and costs. Any other object would be of a vindictive nature, and the law would not sanction it. We are, therefore, of opinion that an imprisonment under Section 481, which is continued after decree, in no way differs from it, and must be taken to be equivalent to it.

8. If, then, an arrest, under Section 481 is, after decree, equivalent to an arrest in execution, it becomes subject to the limitation as to time imposed by Section 342, which forbids the extension of such an arrest beyond the period of six months. This undoubtedly was the intention of the Legislature; and the Court is bound to give effect to it if the express terms of the Act are not inconsistent with that intention. We think they are not inconsistent with it. As already shown, the imprisonment in question, that is, under Section 481, although it has an independent origin, becomes, after decree, in every essential the same as arrest after judgment. The same rule of limitation must, therefore, be applied. If, therefore, as in the present case, the special period of limitation in the chapter on arrest before judgment, viz., six months, which is imposed in Section 481, terminates while the defendant is still detained under that section, and he is re-arrested in execution under Section 336, the period of imprisonment which has elapsed since the decree must be counted, and when that period plus the new period amounts altogether to six months, then Section 342 applies, and the defendant must be liberated. The time to be counted is the time of actual, imprisonment.

9. The defendant in the present case was, by the Judge's order of the 28th July last, committed to jail for six months as from the 6th March, 1883, or until further order; and, for the reasons above given, we are of opinion that, under the circumstances of the case, he cannot be detained in custody after He has completed six calendar months imprisonment from the 6th March last, the date of the decree, and that he will, accordingly, be entitle to be released from jail on the 5th September next.


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