1. This appeal arises out of proceedings relating to the execution of a decree. The facts are briefly as follows. The respondent obtained an ex parte decree against the appellants on the 8th of January 1909. The appellants applied to the Court to set aside the ex parte decree and to rehear the case. This matter came up for decision on the 27th of March 1909. The appellants it appears are residents of Bombay. The suit was in the Court of the Subordinate Judge of Benares. Apparently for the purpose of looking after their case the appellants proceeded to Benares and there put up at a Dak bungalow. They attended Court on the 27th of March, the case was heard and their application was dismissed. They left the Court, returned to the Dak bungalow and thence proceeded to the Railway Station. In the meantime the decree-holder had applied for execution of the decree and for the arrest of his judgment-debtors. Warrants were issued and the appellants 'were arrested when actually seated in the train. They had, it appears, taken tickets for Allahabad, at least that is the finding of the Court below on the evidence before it. The appellants claimed the privilege granted by Section 135 of Act No. V of 1908; they pleaded that they were exempt from arrest on the ground that they were returning from the Court to their home. This plea was disallowed by the lower Court. Hence the present appeal,
2. A preliminary objection was taken by the learned Advocate for the respondent that no appeal lies. Ho relies upon Section 104 Clause (h), Civil Procedure Code, Act. V of 1908, and urges that though an order directing the arrest or detention of any person is appealable under that section the clause specially exempts the case where such, arrest or detention is in execution of a decree and, therefore, no appeal lies. The reason of the exception in this clause is obvious. An order for arrest and detention made in execution of a decree is an order made under Section 47 of the Code, being an order for the execution of the decree. Such an order is a decree which is appealable, -under Section 96 of the Code. It is obvious, therefore, that the exception in Clause (h) is entered therein because provision is made elsewhere for an appeal from an order of arrest in the execution of a decree. Section 104 only relates to appeals from orders, which do not amount to a decree. We, therefore, 'overrule the preliminary objection.
3. Coming to the appeal itself the learned Advocate for the appellants urges that his clients are entitled to the privilege granted by Section 135 of the Code, because they had come from their home in Bombay to attend the tribunal in which their case was pending and that at the time of their arrest they were returning home from such tribunal. He quotes the ruling reported in In the matter of Siva Bux Savuntharam 4 M. 317. In that case a native of Patna went to Madras on the 24th of October on account of a suit then pending in which he was plaintiff. The case was ajourned on the 27th October for seven weeks. He remained in Madras on account of the suit and was arrested on the 10th of November. Kernan, J., held that under these circumstances the defendant was within the principle of privilege as a suitor and discharged him from the arrest. In our opinion this was too great an extension of the scope of the privilege. The principle on which it is founded is that freedom from the fear of arrest encourages willing attendance and thus tends to the advancement of justice. In our opinion the decision of Kernan, J., is not one which would be warranted by the language of Section 135. It is difficult to conceive that in that case the plaintiff was either going to, attending or returning from any tribunal at the time of his arrest. That ruling also seems to be inconsistent with the decision of Phear, J. in the case of Wooma Ckaran Dhole v. Tail 14 B.L.R. App. 13. In that case a person having been summoned to Calcutta as a witness in a certain case, reached Calcutta before the case came on and while there he was arrosted in execution of a decree. At the time of his arrest he was as a matter of fact actually returning from the Court by a round about -way to his place of residence in Calcutta, ho having gone to the Court somewhat unnecessarily to find out about the case. It was held that he. did not come within the privilege. In the present case the appellants had left the Court and had returned to the place where they were staying in Benares; they had then left that place and were actually on their way to Allahabad which is not their home. In these circumstances we cannot hold that they at the time of arrest were returning from a tribunal within the meaning of Section 135. In this view the appeal fails and we dismiss it with costs.
4. In view of the fact that the order of the lower Court rejecting the appellants' application to have the ex parte decree set aside has been reversed by this Court on appeal and the case has been remanded for decision on the merits after taking evidence, we think the lower Court would exercise a wise discretion if it stayed execution of the decree pending the disposal of their application.