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in relation to his property, with the object or effect of obstructing or delaying the decree-holler in the executior of the decree ;
(c) any undue or unreasonable preference given by the judgment-debtor to any of his other creditors ;
(d) his refusal or neglect to pay the amount of the decree or some part thereof when he has or since the date of the decree has had the means of paying it ;
(e) the likelihood of his absconding or leaving the jurisdiction of the Court with the object or effect mentioned in clause (6) of this sub-section.
(3) While any of the matters mentioned in sub-section (2) are being considered, the Court may in its discretion order the judgment-debtor to be imprisoned, or leave him in the custody of an officer of the Court, or release him on his furnishing sufficient security for his appearance on the requisition of the Court. (4) A judgment-debtor released under this section
may be re-arrested.
(5) If the Court does not make such an order as is mentioned in sub-section (1), it shall cause the judgmentdebtor to be arrested if he has not already been arrested and, subject to the other provisions of this Code, commit him to jail.
Act VI of 1888, section 4.
338. The Local Government may, from time to time, Scales of subsistence- prescribe scales, graduated according to
rank, race and nationality, of monthly allowances payable for the subsistence of judgment-debtors. This section applies to H. C. and P. S. C. C. 339. No judgment-debtor shall be arrested in execution
of a decree unless and until the decreeJudgment-debtor's subsistence-money. holder pays into Court such 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.
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.
Act VIIl of 1859, section 276. This section applies to H. C. and P. S. C. C.
The first paragraph of this section is new, the remainder runs somewhat similar to section 276, Act VIII, with the exception that the words " or of the jail where the defendant may be in custody” have been struck out, and the minimum rate of four annas a day has been omitted, so as to avoid the points raised in Aga Ali Khan vs. Joy. doyal Pershad, Bourke, 52; Khan Spyer vs. Johan Janssen, Bourke, 2. The payment of subsistence-money must be in advance-In re Konoy Lall Doss, Bourke, 51 ; otherwise the arrest or commitment is illegal, and it is for the officer of the Court and not the prisoner to see that the money is paid-In the matter of Julius Thomson, Bourke, 421.
On the 30th of September the creditor paid subsistence-money for 30 days, and the jailor had then a balance of four annas over from the subsistence-money for September: Held, a sufficient compliance with the terms of this section, as the amount paid was sufficient for the whole of October-Haladhar Dey vs. Ambica Churn, 5 B. L. R., App., 80 ; but where a prisoner was arrested on the 4th of August, and committed to prison on the evening of the same day, and only 27 days' subsistence-money was paid in, it was held that the provisions of this section had not been complied, with, although a sum making the amount sufficient for 28 days, was deposited next day-Dutt vs. Cornelis, 5 B. L. R., App., 79.
Under the present section an order for subsistence-allowance appears to be necessary -See Aga Ali Khan vs. Joydoyal Pershad, Bourke, 52; In re Shambhoo Chunder Haldar, Bourke, 59. Every judicial officer under whose orders any civil prisoner is detained in jail shall, if the prescribed instalment of monthly allowance has not been deposited on the last day of the month, forthwith transmit an order to the officer in charge of the jail for such prisoner's release-Cal. Civ. O., No. 2, 1878.
340. Sums disbursed by the decree-holder for the subSubsistence-money to
sistence of the judgment-debtor in jail shall be costs in suit.
be deemed to be costs in the suit : Provided that the judgment-debtor shall not be detained in jail or arrested in account of any sum so disbursed.
Act VIII of 1859, section 279. This section applies to H. C. and P. S. C. C. Release of judgment
341. The judgment-debtor shall be debtor.
discharged from jail — (a) on the amount mentioned in the warrant of committal being paid to the officer in charge of the jail ; or
() on the decree being otherwise fully satisfied ; or
(c) at the request of the person on whose application he has been imprisoned ; or
(d) on such person omitting to pay the allowance as here. inbefore directed ; or
(e: if the judgment-debtor be declared an insolvent as hereinafter provided ; or o'k., CIV, P.
when the term of his imprisonment, as limited by section 342, is fulfilled :
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 re-arrested under the decree in execution of which he was imprisoned.
Act VIII of 1859, section 278—In the matter of Dwarkalall Mitter, 1 Bourke, 109. This section applies to H. C. and P. S. C. C.
(c) See Appiah Chetty vs. Chengadoo, 4 Mad., 76.
The Code preserves a distinction between arrest and confinement in jail ; and immunity from further process is only obtained by actual confinement-Chengalraya Chetti vs. Subbiah, 6 Mad., 84 ; In the matter of Dwarkalall Mitter, 1 Bourke, 109; Subba vs. Venkata, I. L. R., 8 Mad., 21; or if the discharge takes place after the warrant of committal has heen made out-Timapa vs. Maneshvar, I. L. R., 9 Bom., 181 ; see also section 337A, ante ; but it is not within the power of a Judge to re-arrest a defendant without any petition or motion on behalf of the judgment-creditors to that effect-Shib Ram vs. Ruhumutoollah, 15 W. R., 68.
The judgment-debtor was arrested in execution of decree and committed to prison. He entered into a compromise with the decree-holder for the adjustment of the decree, and thereupon the decree-holder, without certifying the terms of such adjustment to the Court, petitioned for the discharge of the debtor, who was accordingly released. Subsequently the decree-holder again applied for execution of his decree. He was met by the objection that an adjustment had taken place. The matter was not made the subject of inquiry, because it was a proceeding taken out of Court. The High Court, however, held that the decree-holder was bound to state why he applied to have the debtor discharged, and that if no adequate reason were shown that he must be taken to have had his decree satisfied. The case was accordingly remanded to give the decreeholder an opportunity of stating this-Chango vs. Kaluram, 4 Bom., 121.
The property of the debtor remains liable to attachment and sale-Janoki Singh Roy vs. Kaloo Mundul, B. L. R. (F. B.), 888.
Writ of Habeas Corpus.-A Court will release a defendant when the jailor holds no warrant-In the matter of Shah Sahib, 1 Ind. Jur., N. S., 19; but not if the warrant is only informal-In re Bholanath Maley, Bourke, 96. As to the effect of a return, on a warrant of the Small Cause Court in Calcutta, see In the matter of Omirtc Lall Dey, I. L. R., 1 Cal., 78 ; In the matter of Gunesh Sundari Debi, 5 B. L. R., 418; In reSoorendro Nath, I. L. R., 5 Cal., 106.
Instalments.-Where a decree is payable in instalments, the debtor cannot be imprisoned for default in the payment of each instalment - Damodar vs. Malhari, I. L. R., 7 Bom., 106.
Limitation.-An application to arrest a debtor in contravention of this section does not give a starting point for limitation under clause 179 (4) schedule ii of the Limitation Act-Chattar vs. Newal Singh, I. L. R., 12 Alla., 64.
342. No person shall be imprisoned in execution of Imprisonment not to
a decree for a longer period than six exceed six months.
or for a longer period than six weeks if the decree be for When not to exceed the payment of a sum of money not exceedsix weeks.
ing fifty rupees. Act VIII of 1859, section 278. This section applies to H. C. and P. S. C. C.
Where a person is imprisoned under section 481, post, imprisonment suffered after decree must be taken into consideration in calculating the six months-Ghanashamdas vs. Johari Mull, I. L. R., 7 Bom., 481.
On the expiration of the period, the prisoner is entitled to his discharge, whether the imprisonment has been continuous or only at intervals-Rhoda Buksh vs. Sukroolah, 5 Alla., 220. The imprisonment is not a satisfaction of the decree, and the debtor can
be adjudicated an insolvent for it-In the matter of Rughubhai Ram Chandra, 6 Bom., 86; Janoki Singh Roy vs. Kaloo Mundul, B. L. R., (F. B.), 888.
Contempt.-This section and section 341, ante, do not apply to cases of imprisonment for contempt of Court-Martin vs. Lawrence, I. L. R., 4 Cal., 655.
Period.-This section does not empower a Judge to fix a term of imprisonment at his discretion within the maximum-Subud vs. Singi, I. L. R., 13 Mad., 141,
See note under section 481, post.
343. The officer entrusted with the execution of the Endorsement on war
warrant shall endorse thereupon the day
on, and the manner 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.
Act VIII of 1859, section 272. This section applies to H. C. and P. S. C. C.
The nazir can delegate the execution to a subordinate officer by endorsing his name on the warrant. If the endorsement is irregular it does not invalidate the arrest-Abdul Karim vs. Bullen, I. L. R., 6 Alla., 385.
OF INSOLVENT JUDGMENT-DEBTORS. This Chapter does not apply to debtors on the Original Side of the High Court, section 360A, infra.
344. Any judgment-debtor arrested or imprisoned in
execution of a decree for money, or against Power to apply for declaration of insol- whose property an order of attachment has vency.
been made in execution of such a decree, 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 Court within the local limits of whose jurisdiction the judgment-debtor resides or is in custody.
Act VIII of 1859, section 273.
Execution.- Where execution has been obtained ex-parte, the order for execution is not res judicata as to the existence of a decree- Ishvardas8 vs. Dosibai, I. L. R., 7 Bom., 316.
District Court.-Formerly the application must always have been made to the District Court-Purbhudas vs. Chugun, I. L. R., 8 Bom., 196 ; Gungadhur vs. Datto, I. L. R., 9 Bom., 368; unless the debtor was under arrest, when the application might have been made to a Court invested with powers under section 360, post-Narasayya vs. Narasammi, I. L. R., 7 Mad., 511; and this is still the law-Joynarayan vs. Mudhoo, 1. L. R., 16 Cal., 13. Where an application was made eleven days before the applicant's property was attached, and after the attachment a creditor objected that the Court had no jurisdiction, it was held that such an objection should be disregardedMakhan Lal vs. Guizari, I.L. R., 6 All., 289. See, however, Gungadhur vs. Datto, I.L. R., 9 Bom., 368.
The Deputy Commissioner of Akyab has power to entertain applications under this section-In the matter of Abdool Hameed, I. L. R., 4 Cal., 94; but not the Deputy Commissioner of Chota Nagpore-Joynarayan vs. Mudhoo, I. L. R., 16 Cal., 13.
Persons Liable.—This section applies to those defendants only-In the matter of Benarussee Dutt, Cor., 123–who have been arrested or imprisoned-Smith vs. Boggs, 5 B. L. R., App., 21 ; In re Eduljee Rutonjee, 10 B. L. R., App., 27, or whose property has been attached under a money-decree, and who have not filed a petition of insol. vency-Kristo Lal Gossain vs. Joy Gopal Bysak, 21 W. R., 185, and have themselves petitioned the Court-Kheta Mal vs. Chuni Lal, I. L. R., 2 Alla., 173, 179; Sheo Prasad vs. Miller, I. L. R., 2 Alla., 474, p. 479. It does not apply to cases of insolvency, where the debtor's property has vested in the Official Assignee-Kissoree Mohun Chatterjee vs. Kanny Lal Dutt, 1 Ind. Jur., N. S., 247. See, however, In re Hastie, I. L. R., 11 Cal., 451.
Small Cause Court.—This Chapter applies to proceedings in Mofussil Small Cause Courts-Lallu Ganesh vs. Ranchod, I. L. R., 2 Bom., 641 ; but not to a Collector acting under Act VII (B. C.) of 1868-In the matter of Bodru Rahman, 3 C. L. R., 508.
A defendant who was brought up under arrest in execution of a decree before a Small Cause Court presented an application under section 273, Act VIII, 1859, that he has only landed property, and this he was willing to place at the disposal of the Court. It was held that the plaintiff should be called upon to show cause why he should not proceed against that immoveable property as provided by Act XXIII of 1861, section 8, that the fact that it was necessary to proceed by means of the process of another Court made no material ditference: and that though the strict terms of section 273 could not be applied with effect to a proceeding in a Court of Small Causes, they were applicable so as to give full effect to what was the purpose intended by the Legislature, viz., that the property described in the application should appear to be disposable in execution of the decree-Shaw vs. Subramier, 5 Mad., 108 ; and see Komarasami vs. Govindu, I. L. R., 11 Mad., 136.
345. The application, when made by Contents of application.
the judgment-debtor, shall set forth(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 ;
(c) the place or places in which such property is to be found;
[If the application for discharge does not state the place in which the property may, be found, it must be refused-Watkins vs. Rajah Roheenee Dullub, 10 B. L. R., App., 11. ]
(d) his willingness to put it at the disposal of the Court;
(e) the amount and particulars of all pecuniary claims against him ; and
(f) the names and residences of his creditors, so far as they are known to or can be ascertained by him.
The application, when made by the holder of a decree for money, shall set forth the date of the decree, the Court by which it was passed, the amount remaining due thereunder,