SIC K DHANALAKSHMI AMMAL Vs. MALLI KRISHNAMURTHI

JUDGEMENT

(1.) This second appeal raises a very interesting point of law, namely, whether a judgment-debtor husband in a maintenance decree, after having been committed to a civil prison for six months, in an execution petn. for recovering the moveables & costs, & been there for the entire period prescribed in Section 58(1), C. P. C., & in another execution for recovering the maintenance which had accrued by then, be again sent to the civil prison for another period of six months, & so on & so forth, for recurring periods of six months for recurring maintenance amounts for later periods. The trial Ct. held that he can be so sent if he, having means to pay the maintenance amount, refuses to pay, but confessed that the matter was not free from doubt, & gave the judgment- debtor some time to pay up before ordering his arrest again. On appeal, by the judgment-debtor, the Dist. J. of Madura held that a maintenance decree cannot be held to be a different decree in respect of each matter adjudicated in it, for the purpose of re-arreafe & committal to civil prison under Sections 38(1) & 58 (2), C. P. C., distinguishing the rulings in Harak Narain v. Babban, A. I. R. (20) 1933 ALL. 473 : (55 ALL. 672) & Mt. Prem Kuer v. Ram Lagan Rai, A. I. R. (35) 1948 Pat. 199 as not applicable to arrests at all. He relied on the ruling in Damodar Shaligram v. Malhari, 7 Bom. 106, & the plain wording of Section 58 (2), C. P. C., & held that once the judgment-debtor has been arrested & detained in civil prison for the full period of six months mentioned in Section 58, C. P. C., in execution of a maintenance decree, he ia not liable to be arrested again in execution of the same decree though for an amount due under a different head in the decree. He relied most strongly on the clause,

(2.) Mr. T. S. Vaidyauatha Aiyar, for the maintenance-holder wife, urges that the learned Dist. J.'s view was wrong & unsustainable in law & that it virtually condemned the wife to death by starvation by the husband's abuse of law. He urged that a maintenance decree is a composite decree, & that every time the decree-holder ia proceeding by way of execution it is a fresh decree that is being put in execution, as held in Debendranath v. Trinayani Dasi, 24 Pat. 245 : (A. I. R. (32) 1945 Pat. 278), & that, therefore, a judgment-debtor husband can be sent to civil jail for six months at a time for every maintenance amount above Rs. 50 accruing for each period, & that as the first arrest & committal were for the value of the moveables & costs awarded to the appellant^ the re arrest was applied for, for the first maintenance amount due, the case for rearrest was even stronger. I cannot agree. I have no doubt whatever that the learned Dist. J. was right in his view in the circumstances of this case, as the re-arrest was being asked for "under the decree in execution of which he was detained in the civil prison," within the meaning of Section 58(2), C. P. G. If any man, layman or lawyer, is asked, he will have certainly to reply that the rearrest was being asked for only in execution of the decree in O. S. No. 313 of 1946, though under a different branch of it. The tree was the same. So, when Section 58(2), C. P. C., cut the trunk at the root, all the branches fell down automatically with it, & no re-arrest was possible. Of course, the debt & the liability for maintenance remain, under Section 58(2), C. P. C., itself, despite the release after a six month period in the civil prison, & can be recovered by other methods, like proceeding against the charged properties, & other properties of the judgment-debtor. Sending a judgment-debtor to the civil prison, though once very frequent, is, in every civilised country, now hedged in with many restrictions, & is only allowed in rare cases, mostly cases of fraud, contumacious refusal to pay though there are ample means, etc. It has been hedged in in another way also, by fixing the maximum duration of the stay in civil prison in respect of each decree, Section 58(1) making ib six months in cases like this. Of course, Mr. Vaidyanatha Aiyar is right in Baying that Section 58, C.P.C., will not make the maximum period in civil prison for any man in his life-time sis months. The maximum applies only for the execution of the same decree. The decree-holder in a different decree can take advantage of Section 58 & send the same man to the civil prison for another period of six months, if he is liable otherwise. A "decree" clearly includes the adjudication of "all or any of the matters in controversy in the suit" under Section 2(2), C. P. C. So the adjudication on various matters in the same suit cannot be termed to constitute separate decrees or fresh decrees for the purposes of Section 58, C.P.C., as urged by Mr. Vaidyanatha Aiyar. As remarked by the learned Judges in Damodar Shaligram v. Malhari, 1 Bom. 106, "the section (Section 58) is one clearly intended to operate in restriction of the power of arrest & in favour of personal liberty & should be construed according to the piain meaning of the terms." Mr. Vaidyanatha Aiyar urged that this construction would put intolerable restrictions on the rights of the decree-holder. But where the law puts such reatriction deliberately, in the interests of the public or of personal liberty, Cts. are bound to carry it out, as in the case of the Madras Agriculturists' Relief Act, Slavery Abolition Act, Devadasi Act, Zamindari Abolition Act, etc. If Mr. Vaidyanatha Aiyar'a contention is accepted, a wife holding a maintenance decree can make the husband go to jail the day after he comes back, for the maintenance which has accrued for the six months when he was in jail. The old story of Vikra-maditya, of spending six months in one place & six mouths in another, every year, will be repeated, with the sole difference that the alternation of six months will not be in town & forest, as in the romantic case of Vikramaditya but in jail & hiding. The cases relied on by Mr. Vaidyanatha Aiyar, like Debendranatha v. Trinayani Dasi, 24 Pat. 245: (A.I.R. (32) 1945 Pat. 278), do not relate to Section 58, C. P. C., or to sending a judgment-debtor who had undergone six months civil imprisonment once more to civil jail for another sum of maintenance which accrued since. They refer only to enforcing subsequent amounts payable by the judgment-debtor by sale of his charged properties.

(3.) Mr. Vaidyanatha Aiyar says that this judgment-debtor sets up frivolous defences when his charged properties are proceeded against, by falsely alleging that they are trust properties. It is upto his client & advocate to prick those frivolous defencea & convince the executing Court that the charged properties are not trust properties & can be sold. The right to raise a defence is elementary, & is given to every party under the law, & the judgment-debtor cannot be sent to civil prison for raising any defence allowed by law, the use of law can never be an abuse of law. Nor can the hardship caused to the wife by postponing payment of her maintenance by setting up absence of means be any ground for overlooking the clear dictates of law. I may add also that the trial Ct. was not right in holding that the finding in E.P.No. 212 of 1947 against the decree-holder's (sic) plea of no means when he was arrested & committed concluded the matter regarding his plea of no means in E. P. No. 58 of 1948 when sought to be arrested again. A man's plea of no means may be false in 1947, but may be true in 1948. Means & health may change rapidly during a year, & a year-old finding may not be safe to rely on. Being a question of fact, liable to quick change by time, the former finding cannot be conclusive in the later E. P. where a distinct finding would have been necessary if there was a legal poasibility of re-arreat & re-committal.