ACHUTA NAND Vs. MAHABIR PRASAD

JUDGEMENT

(1.) This is a judgment-debtors appeal and arises under the following circumstances : The plaintiff, respondent filed a suit for partition of certain properties. He also claimed a decree for money as against the defendants. A preliminary decree was passed in favour of the plaintiff directing the partition of the joint properties. By the preliminary decree, the plaintiff was further held entitled to a decree for money against the defendants as also to get his costs from the defendants. After the passing of the preliminary decree, proceedings were initiated for the preparation of a final decree. During the pendency of those proceedings, a receiver was appointed who issued notice to the parties to appear before him with a view to settlement of accounts. Before the accounts were settled, the respondent filed an application for execution praying that the amount awarded to him by the preliminary decree as well as the costs be realized by the arrest of the present appellants; the present appellants being apprehensive of arrest bolted away and could not be traced. In the meantime, the date fixed by the receiver for the settlement of accounts drew near and then on representation being made on behalf of the appellants the Court directed that the receiver should fix a date and that the judgment-debtors would be at liberty to go to the receiver on that date and explain the accounts and that they (the judgment-debtors) would then be exempted from arrest.

(2.) The date fixed by the receiver for the settlement of accounts was 16th September 1936. Two days before that date, viz. on 14 September, the appellants were arrested at their home. They then on 15 September filed an application in the execution Court praying that they be set at liberty. In their application they stated that on account of fear of arrest they had to leave the district and take shelter at another place and that, on getting an assurance from the Court that they would be exempt from arrest while appearing before the receiver, they came back to the district and when they were "making preparations" at home to come to the headquarters in order to explain the accounts they were arrested in execution of the decree. The learned Judge by his order dated 15 September rejected the application of the judgment-debtors and this appeal is directed against that order. The exemption from arrest claimed by the judgment-debtors was based on the provisions of Section 135(2), Civil P.C. It is provided by that clause that: Where any matter is pending before a tribunal having jurisdiction therein the parties thereto, their pleaders, mukhtars, revenue agents and recognized agents, and their witnesses acting in obedience to a summons, shall be exempt from arrest under civil process...while going to or attending such tribunal for the purpose of such matter, and while returning from such tribunal.

(3.) The plain interpretation of the clause is that the exemption from arrest under civil process is limited in point of time taken by a party, witness, etc. in going to or attending or in returning from the tribunal mentioned in the clause. That this is so is demonstrated by the use of the word "while" before "going to or attending" and before the word "returning". The question as to what is the reasonable time taken in going to or attending or returning from Court is a question of fact and must necessarily depend on the circumstances of each case. The section had been judicially interpreted in a number of cases. In re Siva Bux Savuntharam (1882) 4 Mad. 317 a very wide interpretation was put on the section. In that case a native of Patna went to Madras on 24 October to prosecute a suit in which he was plaintiff and the suit was adjourned on 27 October for seven weeks. The plaintiff however stayed in Madras and was arrested on 10 November. It was held that the plaintiff in that suit was entitled to the benefit of the exemption provided for by Section 642 of the former Civil P.C. which corresponds to Section 135 of the present Code. This case was dissented from by this Court in Ardeshirji Framji v. Kalyan Das (1910) 32 All 3, and it was observed that the Madras decision was not warranted by the language of Section 135. It. was pointed out that having regard to the facts of the Madras case it could not be held that the plaintiff in the Madras suit was either going to, attending or returning from any tribunal at the time of his arrest. This Court held that the exemption provided for by Section 135 is limited to the time taken in going to or attending or returning from the tribunal referred to in the section.