40. Proceedings on appearance of judgment debtor in obedience to notice or after arrest.-(1) When a judgment debtor appears before the court in obedience to a notice issued under rule 37, or is brought before the court after being arrested in execution of a decree for the payment of money, the court shall proceed to hear the decree holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the judgment debtor an opportunity of showing cause why he should not be committed to the civil prison. (2) Pending the conclusion of the inquiry under sub-rule (1) the court may, in its discretion, order the judgment debtor to be detained in the custody of an officer of the court or release him on his furnishing security to the satisfaction of the court for his appearance when required. (3) Upon the conclusion of the inquiry under sub-rule (1) the court may, subject to the provisions of section 51 and to the other provisions of this Code, make an order for the detention of the judgment debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest: Provided that in order to give the judgment debtor an opportunity of satisfying the decree, the court may, before making the order of detention, leave the judgment debtor in the custody of an officer of the court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the court for his appearance at the expiration of the specified period if the decree be not sooner satisfied. (4) A judgment debtor released under this rule may be re-arrested. (5) When the court does not make an order of detention under sub-rule (3), it shall disallow the application and, if the judgment debtor is under arrest, direct his release. HIGH COURT AMENDMENTS ANDHRA PRADESH.- The following sub-rules shall be added to Rule 40. “(6) During the temporary absence of the Judge who issued the warrant under Rule 37 or 38, the warrant of committal may be signed by any other Judge of the same Court or by any Judicial Officer superior in rank who has jurisdiction over the same locality or where the arrest is made on warrant issued by the District Judge, the warrant of committal may be signed by any Subordinate Judge or District Munsif empowered in writing by the District Judge in this behalf. (7) No judgment-debtor shall be committed to the civil prison or brought before the Court from the custody to which he has been committed pending the consideration of any of the matters mentioned in sub-rule (1) unless and until the decree-holder pays into Court such sum as the Judge may think sufficient to meet the travelling and subsistence expenses of the judgment-debtor and the escort. Sub-rule (5) of Rule 39 shall apply to such payments”. BOMBAY.- In Order XXI, Rule 40, after the existing sub-rule (5), add the following as new sub-rules (6), (7) and (8): “(6) When a judgment-debtor is ordered to be detained in the custody of an officer of a Court under sub-rule (2) or the proviso to sub-rule (3) above, the Court may direct the decree-holder to deposit such amount as, having regard to the specified or probable length of detention, will provide:
(a) for the subsistence of the judgment-debtor at the rate to which he is entitled under the scales fixed under Section 57, and (b) for the payment to the officer of the Court in whose custody the judgment-debtor is placed or such fees (including lodging charges) in respect thereof as the Court may by order fix: Provided -- (i) that the subsistence allowance and the fees payable to the officer of the Court shall not be recovered for more than one month at a time, and (ii) that the Court may from time to time require the decree-holder to deposit such further sums as it deems necessary. (7) If a Decree-holder fails to deposit any sum as required under sub-rule (6) above, the Court may disallow the application and direct the release of the judgment-debtor. (8) Sums disbursed by the decree-holder under sub-rule (6) shall be deemed to be costs in the suit: Provided that the judgment-debtor shall not be detained in the Civil Prison or arrested on account of any sum so disbursed”. (1.10.1983) GUJARAT.- Sub-rule (6) and (7) are same as that of Bombay. (17.8.1961). KARNATAKA.- To Rule 40 add the following as sub-rules (6) and (7): “(6) During the temporary absence of the Judge who issued the warrant under Rule 37, the warrant of committal may be signed by any other Judge of the same Court or by any Judicial officer superior in rank who has jurisdiction over the same locality, or, where the arrest is made on a warrant issued by the District Judge, the warrant of committal may be signed by any Judge empowered in writing by the District Judge in this behalf. (7) No judgment-debtor shall be committed to the civil prison or brought before the Court from the custody to which he has been committed pending the consideration of any of the matter mentioned in sub-rule (1) unless and until the decree-holder pays into Court such sum as the judge may think sufficient to meet the travelling and subsistence expenses of the judgment-debtor and the escort. The provisions of sub-rule (5) of Rule 39 shall apply to such payments.” (30.3.1967). KERALA.- (i) For sub-rule(2) substitute the following: “(2) Pending the conclusion of the inquiry under sub-rule (1), the Court shall release the judgment-debtor on his furnishing security to the satisfaction of the Court for his appearance when required and if the judgment- debtor fails to furnish the security ordered, the Court may order the judgment-debtor to be detained in the custody of an officer of the Court on the decree-holder depositing in Court the necessary amounts payable to the judgment-debtor and the officer of the Court in connection with such detention.” (16.1.1990). (ii) Sub-rules (6) and (7) are the same as in Madras with this difference that for the words “District Munsif” in sub-rule (6) the word “Munsif” is substituted. (9.6.1959).”
MADHYA PRADESH.- Same as that Of Bombay. (16.9.1960). MADRAS AND PONDICHERRY.- For old sub-rules (6) and (7) substitute the following: “(6) During the temporary absence of the Judge who issued the warrant under Rule 37 or 38 the warrant of committal may be signed by any other Judge of the same Court or by any Judicial Officer superior in rank who has jurisdiction over the same locality, or, where the arrest is made on a warrant issued by the District Judge, the warrant of committal may be signed by any Subordinate Judge or District Munsif, empowered in writing by the District Judge in this behalf, and the Judge signing the warrant of committal in the above cases shall also have the same powers as the Judge who issued the warrant in respect of passing such orders as may be appropriate under sub-rules (1), (3) and (5) of this rule.” (17.3.1954). “(7) No judgment-debtor shall be committed to the civil prison or brought before the Court from the custody to which he has been committed pending the consideration of any of the matters mentioned in sub-rule (1) unless and until the decree-holder pays into Court such sum as the Judge may think sufficient to meet the travelling and subsistence expenses of the judgment-debtor and the escort. Sub-rule(s) of Rule 39 shall apply to such payments”. See Act 28 of 1968, Section 3 and Sch., Part II (w.e.f. 5.9.1968).
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