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2002 Supreme(P&H) 107
PUNJAB AND HARYANA HIGH COURT
M.M. Kumar, J.
Shiv Auto Trading Company - Petitioner
Versus
Oriental Bank of Commerce - Respondent
Civil Revision No. 212 of 2002.
Decided On : 24 January, 2002
For the Petitioner:Mr. Mani Ram Verma, Advocate.
For the Respondent:Mr. Ravinder Chopra, Advocate.
The interpretation of Section 58 of the Code of Civil Procedure and the application of the bar to re-arrest under sub-section (2) were central to the court's decision.
Headnote:
Detention - Civil Imprisonment - Code of Civil Procedure, Section 58
Fact of the Case:
The judgment-debtor-petitioner sought cancellation of his warrant of arrest, claiming he had already served the sentence of imprisonment. The application was dismissed, and the judgment-debtor-petitioner was ordered to undergo civil imprisonment.
Finding of the Court:
The court found that the judgment-debtor-petitioner could be detained in civil prison for a period not exceeding 3 months, and as he had remained in civil prison for less than one month, the bar to re-arrest under Section 58(2) of the Code of Civil Procedure did not apply. The court also directed the jail authorities to ensure necessary medical care for the judgment-debtor-petitioner.
Issues: The main issue was whether the judgment-debtor-petitioner could be re-arrested for the execution of the decree after having already served a period of imprisonment.
Ratio Decidendi: The court interpreted Section 58 of the Code of Civil Procedure and held that the immunity to the judgment-debtor-petitioner from re-arrest was not solely dependent on the fact of arrest but also on the period for which he was detained in jail.
Final Decision: The revision petition was disposed of with the observation that the judgment-debtor-petitioner's right to medical care and suspension of warrant of arrest, as per article 21 of the Constitution of India, should be considered by the executing Court in case of serious medical needs.
M.M. Kumar, J. - This revision petition is directed against the order dated 3.1.2002 passed by the Additional Civil Judge (Senior Division), Charkhi Dadri dismissing the application filed by the judgment-debtor-petitioner for cancellation of his warrant of arrest wherein it was claimed that he had already undergone the sentence of imprisonment from 21.5.1997 to 11.6.1997.
2. The decree-holder-respondent has filed execution application against the judgment-debtor-petitioner in which warrant of arrest was issued. An application was filed by the judgment-debtor-petitioner seeking cancellation of warrant of arrest on the ground that he has already served the sentence of imprisonment and he was released by the High Court on the ground of severe illness. He also complained of various ailments asserting that he is under treatment from Safdarjang Hospital, New Delhi, All India Medical Sciences, New Delhi, Lady Medical Harding College, Sucheta Kripalani Hospital, New Delhi and Escorts Heart and Research Centre, New Delhi. Therefore, request was made that he may not be sent to civil imprisonment and his warrant of arrest be suspended. The application was dismissed by recording the following order :
"Accordingly, when each and every aspect of this case including ailment of the J.D. has been taken into consideration by the court and the orders dated 13.5.1997 to carry out sentence of three months imprisonment as per order dated 21.12.1996 were passed, therefore, holding no force in the instant application moved by J.D. applicant, the same is dismissed. J.D./applicant be sent to the civil imprisonment for carrying out the sentence of unexpired period as already inflicted by the court vide order dated 21.12.1996, until he makes the payment of whole outstanding against him towards the Decree-Holder which ever is earlier. Fresh warrant be prepared and photostat copy of warrant of imprisonment of sentence in civil imprisonment dated 13.5.1997 be also sent alongwith it to carry out the sentence into execution of remaining unexpired period. The conditions put in the note of that warrant would be also prevailing for the remaining unexpired period of sentence to be undergone by the J.D."
3. Shri Mani Ram Verma, learned counsel for the judgment-debtor-petitioner has argued that under sub-section (2) of Section 58 of the Code of Civil Procedure (for brevity, the Code), once the judgment-debtor-petitioner is released from detention, he could not be rearrested for execution of decree. According to the learned counsel, once he has remained in jail from 13.5.1997 to 11.6.1997, he cannot be re-arrested for the purposes of execution of that very decree.
4. On the other hand, Shri Ravinder Chopra, learned counsel for the decree- holder-respondent has submitted that the judgment-debtor-pettitioner is misusing the process of the Court and is avoiding the execution of the decree. He points out that this Court earlier also has dismissed his revision petition in 1997. Therefore, the judgment-debtor-petitioner does not deserve any sympathy of this Court.
5. Having heard learned counsel for the parties and perusing the record, I am of the opinion that this revision, petition is devoid of any merit. Section 58 of the Code reads as under :
"58. Detention and release. - (1) Every person detained in the civil prison in execution of a decree shall be so detained -
(a) where the decree is for the payment of a sum of money exceeding (one thousand rupees, for a period not exceeding three months, and
(b) where the decree is for the payment of a sum of money exceeding five hundred rupees, but not exceeding one thousand rupees, for a period not exceeding six weeks :
Provided that he shall be released from such detention before the expiration of the [said period of detention] -
(i) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil prison, or
(ii) on the decree against him being otherwise fully satisfied, or
(iii) on th
