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1980 DIGILAW 279 (KER)

BALAKRISHNAN v. NARAYANAN

1980-11-04

P.SUBRAMONIAN POTI

body1980
Judgment :- 1. A question of some importance is raised in this revision petition. Though arrest and detention of the judgment-debtor is a mode of enforcing execution of a decree for payment of money there are restrictions placed on the power of arrest and detention by the provisions of the Code of Civil Procedure. By the amendment of the Code of Civil Procedure effected in 1976 the right to arrest and detain the judgment-debtor has been restricted by limiting the period for which detention is permissible S.51 (c) relates such period to that specified in S.58 of the Code. Where the decree is for payment of a sum of money exceeding one thousand rupees the detention cannot exceed 3 months and where the decree is for payment of money exceeding Rs. 500/-but not exceeding Rs. 1000/-the detention is to be for a period not exceeding . 6 weeks. Naturally the question would arise what would be the period of detention when the decree is for payment of an amount below Rs 500/-.Perhaps it may be argued that in the absence of a provision as to a specified maximum period in regard to such sum it is unlimited. That would be plainly unreasonable, for, the lesser the sum the period of detention cannot be limitless. It is to remove this doubt that provision is made in sub-section (1A) to S.58 that "no order for detention of the judgment-debtor in civil prison in execution of a decree for the payment of money shall be made where the total amount of the decree does not exceed five hundred rupees" It means that if the decree amount does not exceed Rs. 500/-there is no scope for detention in civil prison at all for any period. 2. In the case before me the judgment-debtor is called upon to pay costs of the litigation which is below Rs. 500/-. He was sought to be arrested He based his defence to such arrest under S.58 (1A) of the Code. This plea has not been accepted by the court below which embarked upon a discussion of the philosophy underlying the award of costs. 500/-. He was sought to be arrested He based his defence to such arrest under S.58 (1A) of the Code. This plea has not been accepted by the court below which embarked upon a discussion of the philosophy underlying the award of costs. The learned Munsiff who passed the order noticed that the object of awarding costs is to secure to a litigant the expenses incurred by him in the litigation and not to enable him to make anything by way of gain or profit It was therefore assumed by the learned Munsiff that the provision for payment of costs in a decree is not to be construed as a provision under a decree for payment of money as contemplated by S.58(1 A) of the Code. 3. A decree for costs is executable just as any decree for payment of money. Money is payable under a decree when the court awards costs under the decree. If the amount decreed as costs is not paid by the person who is made liable to pay it under the decree it could be recovered by execution of the decree A person on whom the liability to pay such costs is imposed would be the judgment-debtor and the person to whom the costs is payable under the decree would be the decree-holder within the meaning of these terms in the Code. In short costs is recoverable by execution of a decree just as any other amount payable under decree could be recovered. It is so recoverable because it is an amount payable under the decree. If money is payable under a decree the decree is necessarily one for payment of money. 4. Apart from the fact that the plain meaning of the term decree for payment of money would take in decree for costs one sees no rational basis for treating a decree for costs as outside the purview of S 58(IA). To treat it so would yield anomalous results. Despite S.58(1)(a) and (b) having defined the limits of the period for which a person could be detained in civil prison by way of execution for payment of money due under the decree if S.58(1 A) is said to be not applicable to the case of a decree for costs, there would not be a limit of time for detaining a judgment-debtor who is liable to pay costs. Even if the costs is negligible he could be detained not only for the period of 6 weeks or 3 months but for an unlimited time. That would be contrary to the plain meaning and spirit of S.58 and the scheme of arrest and detention envisaged in the provisions of the Code of Civil Procedure. Further S.51 (c) having limited arrest and detention in prison in all cases to such period not exceeding the period specified in S.58 there could be no case where there could be any unspecified period of detention. In other words, if there is arrest and detention there has necessarily to be a limitation on the period for which a person could be detained and one has to look to S.58 for that limitation. If clauses (a) and (b) of S.58 (1) do not apply then it is a case where a person cannot be detained at all as explained in clause (1A) which is intended "for the removal of doubts". 5. A reference to the provisions in the Code like those in 0.21 R.1 and 2 would indicate that the decree for costs is a decree for payment of money. Otherwise it would mean that the adjustment or payment out of court of the costs under a decree need not be certified as required in 0.21 R.2 and the mode of paying such costs is not defined in 0.21 R.I. That evidently cannot be the case. 6. For all the above reasons there is no scope for any doubt that the amount payable by way of costs awarded to a party under a decree is amount payable under a decree for payment or money. If the costs so decreed does not exceed Rs. 500/-, S.58 (1A) would disentitle the decree-holder to seek execution by way of arrest and detention in civil prison of the judgment-debtor. The order of the court below is vacated and it is declared that the judgment-debtor is not liable to be arrested in execution of the decree. It is said that by an interim order of this court the judgment-debtor has been called upon to deposit the decree amount If such deposit has been made it goes without saying that it is necessarily subject to the result of the revision and now that the revision has succeeded that deposit does not enure to the benefit of the decree holder. The Revision Petition is allowed as above. Parties are directed to suffer costs. Allowed.