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M.H. Aquill Vs. Union Bank of India, Madikeri - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 911 of 1984
Judge
Reported inAIR1985Kant120; ILR1984KAR171
ActsCode of Civil Procedure (CPC), 1908 - Sections 51, 58(1) and 58(2); Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Order 21, Rules 37 to 40
AppellantM.H. Aquill
RespondentUnion Bank of India, Madikeri
Appellant AdvocateS.G. Bhagavan, Adv.
Respondent AdvocateC.D. Divakar, Adv.
Excerpt:
.....used for commercial purpose from the application of the karnataka rent act, 1999. it is not open to the court to substitute the word carpet area in place of plinth area used by the parliament in interpreting the aforesaid statutory provisions. if such a thing is permitted, it would amount to court re-writing the section and the reading carpet area in place of plinth area which is not permissible in law. .....of rs.60, 000/- including interest. ultimately, the petitioner judgment debtor was detained in civil prison after an enquiry under an order dated 12-12-1983. the order detaining him in civil prison was passed on 30-1-1984. the executing court thought it just and appropriate to detain him in the civil prison for one month from 30-1-1984. that one month expired on 28-2-1984. hence, the petitioner was brought before the executing court on 28-2-1984 from the civil prison.3. on 28-2-1984, the respondent-decree-holder requested the court to pass an order of detention of the petitioner for a further period of two months. that request had been granted by passing the impugned order.4. sri. s. g. bhagavan, learned advocate appearing on behalf of the petitioner, urged that when once the.....
Judgment:
ORDER

1. The order dated 28-2-1984, passed by the Civil Judge, Kodagu in Execution case No. 57 of 1983, is challenged.

2. The undisputed facts are that the respondent-decree-holder commenced execution in the said case for the recovery of decretal amount to the tune of Rs.60, 000/- including interest. Ultimately, the petitioner judgment debtor was detained in Civil Prison after an enquiry under an order dated 12-12-1983. The order detaining him in Civil Prison was passed on 30-1-1984. The Executing Court thought it just and appropriate to detain him in the Civil prison for one month from 30-1-1984. That one month expired on 28-2-1984. Hence, the petitioner was brought before the Executing Court on 28-2-1984 from the Civil Prison.

3. On 28-2-1984, the respondent-decree-holder requested the court to pass an order of detention of the petitioner for a further period of two months. That request had been granted by passing the impugned order.

4. Sri. S. G. Bhagavan, learned Advocate appearing on behalf of the petitioner, urged that when once the Executing Court exercised its discretion judicially by order of detention in Civil Prison for one month from 30-1-1984, it did not have any power to pass the impugned order extending the period of detention by two more months. He drew support from the provision of S. 58(1)(a). He also referred me to S. 51(c) of the Code of Civil Procedure.

5. S. 51(c), as it now stands, reads as follows: -

'Powers of Court to enforce execution:

Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree

(a) ................

(b) ...............

(c) by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section;'

(The under-lined portion has been incorporated by Act 104 of 1976)

Reading of the aforementioned provision refers the Court evidently to S. 58(1)(a). S. 58(1)(a), as it stood prior to Amendment Act 1,04 of 1976, reads as follows: -

'Every person detained in the civil prison, in execution of the decree shall be so detained, -

'(a) Where the decree is for the payment of a sum of money exceeding fifty rupees for a period not exceeding six months; and

(b) .....

The provision, as it now stands after amendment in 1978, reads as follows:-

'(a) Where the decree is for the payment of a sum of money exceeding one thousand rupees for a period not exceeding three months, and

(b) .................'

Comparison of the language in the said provision, as it stood prior to the Amendment Act 1976, and the provision as it stands after the Amendment, makes it crystal clear that as per the old provision, the Executing Court did not appear to have any discretion in curtailing the period of six months to something below, while under the new provision, it has been vested with such discretion which, of course, has to be judicially exercised. The new provision has fixed the maximum period of detention as three months in such cases. In this connection, sub-sec. (2) of S. 58 may be read with advantage. It is as follows -

'(2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be rearrested under the decree in execution of which he was detained in the civil prison.'

This provision takes away the power of the Executing Court (which has to be exercised in accordance with the provisions in 0. 21 Rr.37 to 40 of the Code of Civil Procedure) to order re-arrest of a judgment-debtor after he has been released from detention, as per the order passed earlier by the Executing Court, that too after complying with the provisions in 0. 21 R. 37 to R. 40 of the Code of Civil Procedure. Therefore, in the instant case, if the petitioner had been released from detention on 28-2-1982 and a request for further detention had been made by the respondent-decree-holder on 1-3-1984 or later, the Executing Court would not have have any power to order re-arrest in view of sub-sec. (2) of S. 58 of the Code of Civil Procedure. But the very provision makes it abundantly clear that the Executing Court does not lose jurisdiction to execute the decree. Only the mode of execution available to the decree-holder under S. 58 and 0. 21 R. 37 to R. 40 of the Code of Civil Procedure, would not be available i.e., when once the judgment-debtor is released from detention. Hence, this would not be a case where the Executing Court would lose jurisdiction, but a case where though there is jurisdiction in the Executing Court, it is prevented from exercising a particular power.

6. The provisions of law narrated above and the reasons furnished leave no doubt in my mind that the Executing Court can continue to exercise its judicial jurisdiction regarding detention of judgment-debtors in Civil Prison until the expiry of maximum period of three months provided that the concerned judgment-debtor gets a right to be released in accordance with proviso to S. 58(1) of the Code of Civil Procedure or the Court cannot exercise its power to order re-arrest in view of S. 58(1)(a). Of the Code of Civil Procedure. Therefore, I, see no substance in this petition and dismiss it. No costs.

7. Petition dismissed.


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