The party against whom such order is passed may1 institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit, if any, the order shall be final 2. I.—Of Arrest and Imprisonment. ment. 336. A judgment-debtor may be arrested in execution of Place of judgmenta decree at any hour and on any day3, and shall as soon as debtor's practicable be brought before the Court, and his imprison- imprisonment may be in the civil jail of the district in which the Court ordering the imprisonment is situate, or, when such jail does not afford suitable accommodation, in any other place which the Local Government may appoint for the confinement of persons ordered by the Courts of such district to be imprisoned : Provided as follows: (a) for the purpose of making an arrest under this section, Arrest. no dwelling-house shall be entered after sunset or before sunrise, and no outer door of a dwelling-house shall be broken open. But, when the officer authorised to make the arrest has duly gained access to any dwelling-house, he may unfasten and open the door of any room in which he has reason to believe the judgment-debtor is to be found: provided that, if the room be in the actual occupancy of a woman who is not the judgment-debtor, and who according to the customs of the country does not appear in public, the officer shall give notice to her that she is at liberty to withdraw; and, after allowing a reasonable time for her to withdraw and giving her every reasonable facility for withdrawing, he may enter such room for the purpose of making the arrest: (b) when the decree in execution of which a judgment- Release on debtor is arrested is a decree for money and the judgment- payment. debtor pays the amount of the decree and the costs of the within one year from the date of the order, Act XV of 1877, sched. II, no. II. 2 It may, however, be revised by the High Court under sec. 622, 6 All. 172, following 7 Bom. 341. 3 e.g. Sunday, 4 Mad. H. C. Rulings, lxii, a case in the mufassal. The Lord's Day Act, which was held to be ✦ under sec. 342; see II Cal. 458. Warrant to direct arrest to the officer arresting him, such officer shall at once. release him. The Local Government may, by notification published in the official Gazette 1, direct that, whenever a judgment-debtor is arrested in execution of a decree for money and brought before the Court under this section, the Court shall inform him that he may apply under chapter XX to be declared an insolvent, and that he will be discharged if he has not committed any act of bad faith regarding the subject of his application and if he places all his property in possession of a receiver appointed by the Court. If after such publication the judgment-debtor express his intention so to apply, and if he furnish sufficient security that he will appear when called upon, and that he will within one month apply under section 344 to be declared an insolvent, the Court shall release him from arrest 2 : But if he fails so to apply, the Court may either direct the security to be realised or commit him to jail in execution of the decree. In the case of a surety such security may be realised in manner provided by section 253 337. Every warrant for the arrest of the judgment-debtor for arrest shall direct the officer entrusted with its execution to bring judgment him before the Court with all convenient speed, unless the be brought amount which he has been ordered to pay, together with the interest thereon and the costs, if any, to which he is liable, debtor to up. be sooner paid 5. See Fort St. George Gazette, Part I, 23 Oct. 1877, p. 652: Bombay Government Gazette, Part I, 22 Nov. 1877, p. 998: Calcutta Gazette, 6 Aug. 1879, Part I, p. 809: N. W. P. and Oudh Gazette, 6 Oct. 1877, 1343: Panjáb Notification, No. 3860, dated 3 Oct. 1877: Central Provinces Gazette, Oct. 1877, Part I A, p. 305: British Burma Gazette, Nov. 1878, Part II, p. 271. 2 This clause applies to Small Cause Court debtors, 2 Mad. 9. In the Presidency towns, where a judgmentdebtor, arrested in execution of a subsist 338. The Local Government may, from time to time, pre- Scales of scribe scales, graduated according to rank, race and nation- ence-alality, of monthly allowances payable for the subsistence of lowances. judgment-debtors1. debtor's ence 339. No judgment-debtor shall be arrested in execution Judgmentof a decree unless and until the decree-holder pays into Court subsistsuch sum as, having regard to the scales so fixed, the Judge thinks sufficient for the subsistence of the judgment-debtor from his arrest until he can be brought before the Court. When a judgment-debtor is committed to jail in execution of a decree, the Court shall fix for his subsistence such monthly allowance as he may be entitled to according to the said scales, or, where no such scales have been fixed, as it considers sufficient with reference to the class to which he belongs. The monthly allowance fixed by the Court shall be supplied by the party on whose application the decree has been executed, by monthly payments in advance before the first day of each month 2. The first payment shall be made to the proper officer of the Court for such portion of the current month as remains unexpired before the judgment-debtor is committed to jail, and the subsequent payments (if any) shall be made to the officer in charge of the jail 3. money. ence 340. Sums disbursed by the decree-holder for the sub- Subsistsistence of the judgment-debtor in jail shall be deemed to be costs in the suit : money to be costs in Provided that the judgment-debtor shall not be detained suit. in jail or arrested on account of any sum so disbursed. Release of judgment 341. The judgment-debtor shall be discharged from jail, (a) on the amount mentioned in the warrant of committal debtor. being paid to the officer in charge of the jail; or 1 See notifications by the Local Government of Madras, Macpherson's Lists, 1884, p. 115: Central Provinces Gazette, Oct. 1877, Part I A, p. 304: British Burma Gazette, Jan. 1878, Part II, p. 10: ibid., Oct. 1878, Part II, p. 265. 2 5 Bom. Appx. 79, 80. 3 The provisions of this section as to subsistence-allowances apply to all defendants arrested under chap. XXXIV. See sec. 482 infra. The provisions of this section govern the imprisonment directed under sec. 254, 12 Cal. 657. Imprisonment not () on the decree being otherwise fully satisfied; or (c) at the request of the person on whose application he has been imprisoned; or () on such person omitting to pay the allowance as hereinbefore directed 1; or (e) if the judgment-debtor be declared an insolvent, as hereinafter provided; or (f) when the term of his imprisonment, as limited by section 342, is fulfilled 2: Provided that, in the second, third and fifth cases mentioned in this section, the judgment-debtor shall not be discharged without the order of the Court. A judgment-debtor discharged under this section is not thereby discharged from his debt; but he cannot be rearrested under the decree in execution of which he was imprisoned 3. 342. No person shall be imprisoned in execution of a to exceed decree for a longer period than six months *; six months. When not or for a longer period than six weeks if the decree be for to exceed the payment of a sum of money not exceeding fifty rupees 5. 343. The officer entrusted with the execution of the warrant shall endorse thereupon the day on, and the manner six weeks. Endorse ment on warrant. 1 When the warrant of commitment to jail had been made out, and the defendant, whilst in confinement in the court-house, was discharged owing to non-payment of the subsistence-allowance, he was held to have been 'discharged under this section,' 9 Bom. 181. 2 The imprisonment need not be continuous, 5 N. W. P. 220. 3 4 Mad. H. C. 76. In the execution of a decree for an amount payable by instalments, the judgment-debtor cannot be arrested and imprisoned separately for default in the payment of each instalment, 7 Bom. 108. Sec. 341 read in connection with the definition of 'decree' shows that the legislature intended that he should not be imprisoned more than once under the same decree. But where, after arrest, but before imprisonment, the judg ment-debtor is discharged on account of non-payment of subsistence-allowance, he may be re-arrested under the decree, 8 Mad. 21. Where a judgment-debtor is discharged under this section his property remains liable to attachment and sale, Ben. F. B. 889. Imprisonment under sec. 481 becomes, after decree, imprisonment in execution of the decree, and the imprisonment suffered after that date must consequently be taken into consideration in calculating the period of six months mentioned in sec. 342, 7 Bom. 431. 5 This section and section 341 do not apply to cases of imprisonment for contempt of court, 4 Cal. 657. But see 6 All. 385, where the endorsement was made by the naib nazir. in, which it was executed, and, if the latest day specified in the warrant for the return thereof has been exceeded, the reason of the delay, or if it was not executed, the reason why it was not executed, and shall return the warrant with such endorsement to the Court. If the endorsement is to the effect that such officer is unable to execute the warrant, the Court shall examine him on oath touching his alleged inability, and may, if it thinks fit, summon and examine witnesses as to such inability, and shall record the result. CHAPTER XX. OF INSOLVENT JUDGMENT-DEBTORS 1. 344. Any judgment-debtor arrested or imprisoned in exe- Power to tion of a decree for money 2, or against whose property an declaraapply for order of attachment has been made in execution of such a tion of insolvency. decree 3, may apply in writing to be declared an insolvent. Any holder of a decree for money may apply in writing that the judgment-debtor may be declared an insolvent. Every such application shall be made to the District Court1 within the local limits of whose jurisdiction the judgmentdebtor resides or is in custody. 345. The application, when made by the judgment-debtor, Contents of applishall set forthcation. (a) the fact of his arrest or imprisonment, or that an order for the attachment of his property has been made, the Court by whose order he was arrested or imprisoned, or by which the order of attachment was made, and, where he has been arrested or imprisoned, the place in which he is in custody; (b) the amount, kind and particulars of his property, and the value of any such property not consisting of money; 1 This chapter applies to debtors on the original side of the Presidency High Courts, 11 Cal. 451: 8 Mad. 276. 2 This will cover a decree for compensation for libel, 11 Cal. 453. 3 and who has not filed a petition of insolvency in a Presidency town, This includes the Deputy Com- |