A decree-holder is entitled to depute persons to assist the Process Server in executing a warrant of arrest and is justified in making arrangements for effecting the arrest of the judgment-debtor in accordance with law. The judgment-debtor must be careful in launching criminal proceedings against the decree-holder on the basis of a reasonable and probable cause.

JUDGMENT :

Mohapatra, J. - This is a Plaintiff's second appeal against the confirming judgment of the lower appellate Court arising out of a suit for damages for malicious prosecution, I may shortly narrate the facts which have been found by the lower appellate Court as admitted by both parties. The Plaintiff, Mr. Subba Rao, an old and Senior Advocate of this Court, obtained a decree against the Defendant in the year 1935. The execution case under that decree was pending in the Court of the Additional Munsif at Cuttack. In that case a warrant of arrest was issued against the present Defendant, as judgment-debtor, for the realisation of the balance decretal dues and it was entrusted for execution to the Process Server Brundaban Mohanty. On previous occasions the Plaintiff-decree-holder had experienced considerable difficulty in executing the warrant of arrest against the Defendant-judgment debtor and the Plaintiff kept a careful watch on the movements of the Defendant. On 15th April 1950 the Defendant had been summoned as an accused to the Court of Sri B. Pal, Magistrate, Cuttack. The Plaintiff knowing this made arrangements for the arrest of the Defendant in execution of the Civil Court warrant. The Defendant, an accused ill the criminal case before Sri B. Pal, was ordered to be released on bail in the morning hours, and noticing that arrangements were being made for his arrest under the Civil Court warrant issued in the execution case, he (the Defendant) filed an application before Sri S.S. Roy, Magistrate, who was on that date in charge of the current duties of the Sub-Divisional Magistrate, for an order restraining the Civil Court Process Server from arresting him and claiming immunity from arrest under the provisions of Section 135 of the Code of Civil Procedure. The Magistrate passed an order u/s 144, Code of Criminal Procedure on that day, that is, 15th April 1950, restraining the Civil Court Process Server from arresting the Defendant till the latter reached home and further directed that notice of the order u/s 144, Code of Criminal Procedure should be served upon the Process Server. Thereafter the Defendant, an inhabitant of a village, got into a car which proceeded towards Kathjuri embankment road. But his car was stopped near the eastern gate of the Collectorate compound away from the Collectorate buildings as two persons, Bhikari Ram and Hemchandra Jee, had placed their cycles crosswise at the gate. It is to be noted, these two persons had been deputed by the present Plaintiff to help the Process Server in effecting arrest of the Defendant. The Plaintiff also had arranged a car in which the Process Server went behind the car of the Defendant judgment-debtor. As the judgment-debtor's car was stopped at the gateway, the process server immediately reached the place and showed the warrant of arrest to the Defendant-judgment-debtor and demanded payment of the balance decretal amount, or else he was liable to arrest. In the meantime the Sub-Inspector of Police in charge of the Lalbag Police Station came to the spot, dispersed the crowd and apprised the Process Server of the promulgation of the order u/s 144 passed by Sri S.S. Ray, Magistrate. The Process Server on seeing the order obeyed it and did not execute the warrant of arrest and the Defendant proceeded with the car.

2. Thereafter the Defendant filed a criminal case against the present Plaintiff Mr. Subba Rao and his two men Hemchandra Jee and Bhikari Ram who had been deputed by the Plaintiff to render assistance to the Process Server in executing the order of the Civil Court, that is, arrest the Defendant. Hemchandra Jee and Bhikari Ram were proceeded against u/s 341, Indian Penal Code and Mr Subba Rao was proceeded against in the criminal case for having abated the offence of wrongful restraint, that is, u/s 341 read with Section 109 of the Indian Penal Code. Mr. Subba Rao and Bhikari Ram were acquitted by the trial Court. The other man Hemehanda Jee who was convic