The court's decision emphasizes the importance of interpreting and applying the relevant provisions of law to determine the lawfulness of arrest and escape from custody in execution of a decree.

GOVINDA MENON, J. :- The petitioner was tried before the Sub Magistrate of Cannanore on a complaint preferred by P.W. 1, a process server of the Munsif court of Tellichery for offences punishable under Sections 225-B and 353 I.P.C. The learned Magistrate acquitted the accused of the offence under S. 353, but convicted him under S. 225B and sentenced him to pay a fine of Rs. 100/-.

2. The facts that led up to the case are as follows :

The father of P.W. 4 obtained a decree against the petitioner in O.S. 531/50 on the file of the munsiffs court of Tellichery. By assignment P.W. 4 got the right of the decree-holder and as the petitioner did not pay the decree amount he filed an execution application for the arrest and detention of the petitioner in the Civil Jail. The District Munsiff ordered notice and arrest warrant to be issued simultaneously. The warrant was signed by the Head Clerk under an authorisation by the District Munsiff. The warrant was then sent to P.W. 3, the. Central Nazir, who deputed P.W. 1 for service of notice and to arrest the judgment-debtor. On 2-8-60 P.W. 1 the process server accompanied by P.W. 4 set out in search of the petitioner. They met him in his house and P.W. 1 served the notice Ext. P6 and after obtaining his acknowledgment showed the warrant Ext. PI to the petitioner.

The petitioner signed the warrant and received the subsistence allowance. P.W. 1 then asked the petitioner either to pay the decree amount or to accompany him to court. The petitioner abused P.W. 1 and attempted to leave the place. P.W. 1 then caught hold of him. The petitioner pushed him aside and escaped from his custody. The same day P.W. 1 made a report to the court and that report was forwarded with a covering letter to the Circle Inspector of Police, Cannanore.

The Sub Inspector of Police, Edakkad registered a case but after investigation the case was referred. Thereupon a private complaint was filed by P.W. 1 and on a consideration of the evidence adduced before him the learned Sub Magistrate found the accused guilty and convicted him. The matter was taken up in appeal before the District Magistrate of Tellichery, who on a reappraisal of the evidence found that the petitioner had in had been arrested and that he had escaped from lawful custody and confirmed the conviction and the sentence. Aggrieved with the order this revision petition has been filed.

3. That the petitioner had been arrested and he escaped from custody is amply proved by the evidence adduced by the prosecution and has been con-currently found by the courts below. Learned counsel for the petitioner, therefore, rightly did no6 challenge this finding. His main argument was that the apprehension of the accused is not lawful because the warrant on which the arrest was made was not lawfully issued and as there is no legal arrest, escape from custody would not amount to an offence. It is contended that the order of arrest is illegal; firstly because there has not been a compliance with S. 51 of the Civil Procedure Code; and secondly the notice to show cause against the execution as required under O. 21, R. 22 has not been given to the petitioner.

Learned counsel for the complainant and the public prosecutor would contend that the order that has been passed is one of arrest and as such S. 51 of the Code is inapplicable. According to them the relevant provisions are Rules 37 and 40 of O. XXI. It is stated that S. 51 comes into play only when and order of detention is to be passed.

4. To properly understand the respective contentions, it is desirable to set out the relevant provisions of law. Rule 37 of O. XXI reads :

"(1) Notwithstanding anything in these rules where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the court shall instead of issuing a warrant for his arrest, issue a notice calling upon him to app