W. Comer Petheram, C.J., C.J. and Banerjee, J.
1. This is an appeal from an order of the District Judge of Gya refusing to execute a decree by attachment of the judgment-debtor's person, and the reason which he has given for that is, that the judgment-debtor had filed his petition of insolvency and had given up his property to the Receiver under that petition, and he relies upon the sections of the Code of Civil Procedure relating to insolvency as showing that, after he had done that, he was not liable to arrest at the suit, I suppose, of any creditor whose debt was owing before the time of his petition.
2. The particular debt in respect of which this applicant had obtained a decree and wished to arrest the judgment-debtor was a debt which the judgment-debtor had not included in his schedule, and we think that the learned Judge was wrong in the view which he took that the judgment-debtor was relieved from the liability to arrest in respect of that debt by the Code of Civil Procedure. The right to arrest or to attach the person of the judgment-debtor in execution of decree is a right which is created by the Code, and was an absolute right, and being created as an absolute right it could only be taken away or qualified by subsequent legislation, and subsequent legislation which was clear in its intention. The only section of the Code which takes away that right is Section 357* , and Section 357 says that, where an insolvent has been discharged under the preceding sections, he shall not be arrested or imprisoned on account of any of his scheduled debts. But that qualification is expressly limited to the scheduled debts, and in our opinion the liability to arrest under this Code remained the same as it was before in the case of debts which do not appear in the schedule. It is clear that in this case the debt, in respect, of which judgment was obtained, did not appear in the schedule, and therefore, in our opinion, the right of the judgment-creditor to attach his debtor by the arrest of his person was not taken away by Section 357, or by any of the insolvency sections, and at that time that right remained the same as it was before; and consequently we think the learned Judge was wrong in the conclusions which he came to that he was prevented from arresting this man under this section. But what escaped the learned Judge's attention, and the attention of both the learned gentlemen who have argued this case here, is the fact that the whole of the law upon this subject has been changed by Act VI of 1888. This Act takes away the right of the judgment-creditor to arrest his debtor and to put him in prison simply for the debt. A right to arrest under certain circumstances is retained, but it is a right to put the man in prison where he has the means of paying and will not pay as a means of compelling him to do that which he could do, and the inference from this provision is, that except for that purpose persons are not to be arrested, and therefore the provisions here have been inserted which provides that the arrest comes in but only under some circumstances.
3. We think then that the procedure which was adopted in respect of which this order was made is not applicable to the present condition of things, and that if the judgment-creditor wishes to enforce his remedy by proceedings under Act VI of 1888 he must make a new application to the Judge under that Act. At the same time we think that the Judge was wrong in the view which he took of the insolvency sections of the Code of Civil Procedure. Those sections do not afford any answer to an application of that kind in respect of an unscheduled debt; and we think that, if an application of that kind is properly made before him, it ought to be granted, notwithstanding the fact that the debtor has filed his petition, this particular debt not having been inserted in the schedule. With these remarks we decline to interfere, because the law is changed, and under the circumstances we think that there ought to be no costs.
* Effect of discharge.
[Section 357: An insolvent discharged under Section 351 or 355 shall not be arrested or imprisoned on account of any of the scheduled debts. But (subject to the provisions of Section 358) his property, whether previously or subsequently acquired (except the particulars specified in the first proviso to Section 266 and except the property vested in the Receiver), shall, by order of the Court, be liable to attachment and sale until the debts due to the scheduled creditors are satisfied to the extent of one-third, or until the expiry of twelve years from the date of the order of discharge under Section 351 or 355.]