Jose vs Ramankutty

M.R. Hariharan Nair, J.—The only question which arises for consideration in this revision is whether the order passed by the Principal Munsiff, Irinjalakuda in the Execution Petition in O.S. No. 1047 of 1997 to the effect that the judgment debtor in the case is not liable to be arrested again for the reason that when he was brought under arrest earlier, he had to be released based on non-payment of subsistence allowance by the decree holder, is correct or not.

I have heard both sides. The fact that the accused, though arrested on an earlier occasion, was not actually sent to civil prison is an undisputed fact. The bar under S. 58(2) C.P.C., that the judgment debtor released from detention under the Section shall not be liable to be re-arrested under the decree in execution of which he was detained in civil prison will apply only if he was actually detained in civil prison. In the instance case, such a stage had not reached and the release was at a time when he was brought under arrest in the execution court. Obviously therefore, the bar under S. 58(2) C.P.C. does not apply to the facts of this case. Hence, the impugned order is defective and accordingly set aside. The decree holder is allowed to proceed with the execution including arrest of the judgment debtor, if he is otherwise entitled to it.

The revision is allowed as above.