Sir Barnes Peacock, Kt., C.J.@mdashThe question which has been submitted for the opinion of a Full Bench is whether, u/s 21, Act VIII of 1859, or under any other rule of law applicable to the Mofussil Courts, women who, according to the usage of the country ought not to be compelled to appear in public, are exempt from arrest and imprisonment in execution of decrees? It appears to me to be clear that they are not exempt under any rule or law, unless they are exempt u/s 21. The only question then is whether they are exempt under the provisions of that section. Looking at the whole of Act VIII. of 1859, it appears to me that Mr. Justice Jackson expressed a correct opinion when he stated that " a pardanashin woman who is a judgment-debtor, is not protected from arrest and imprisonment in execution of a decree against her. " Section 17, paragraph 5, enacts that, " whenever the personal appearance of a party to a suit is required by the Act, such appearance may be made by his authorized agent, unless the Court shall otherwise direct. "Sections 19 and 206 point out what may be done when an officer or soldier is a party to a suit.; and then Section 21, upon which the question turns, enacts '' that women who, according to the custom and manners of the country, ought not to be compelled to appear in public, shall be exempt from personal appearance in Court. " The section points out, 1st, the persons who are entitled to the exemption; and, 2ndly, the exemption to which they are entitled. The persons are women who, according to the custom and manners of the country, ought not to be compelled to appear in public. The exemption to which they are entitled is from personal appearance in Court. Section 22 exempts from personal appearance in Court any one whose rank in the opinion of Government entitled him to have that exemption conferred upon him. The exemption is the same in both cases, the only difference is that women who, according to the custom and manners of the country, ought not to be compelled to appear in public, have the exemption by virtue of the Act, whilst men of rank cannot claim the exemption unless the Government confers it upon them.
2. I can scarcely imagine that the Legislature would have vested the Local Government with power to exempt any class, however high their rank, from arrest in execution of decree, so long as it considered it necessary that arrest should be one of the means which ought ordinarily to be allowed for the enforcement of decrees; nor do I believe that the Legislature, much as it desired to regard the usages of the country, ever intended to exempt pardanashin women from arrest in execution of decrees, to which all other women are subject. There are many cases in which it would be impossible to enforce a decree against a native lady if she were exempt from arrest in execution. She may be a widow or a married woman; she may have separate property; or she may have only a small allowance for her maintenance and religious duties. Our experience teaches us that native ladies, especially widows, unacquainted with the world, are not unfrequently induced to allow speculative suits to be instituted in their names by persons who hope to derive profit if the suit succeeds, and agree to indemnify the women in whose names the suits are brought. In such oases, if the person in whose name the suit is instituted, has no property and no joint cause of suit, her opponent may be harassed by frivolous and vexatious litigation, if, when she fails in her suit, he cannot enforce a decree for costs against her by arrest in execution.
3. In the chapter of Act VIII of 1859, which relates to execution of decrees, it is enacted by Section 201, that if the decree be for money, it shall be enforced by the imprisonment of the party against whom the decree is made, or by the attachment and sale of his property, or by both, if necessary. By Section 222 it is enacted, " that where all necessary preliminary measures have been taken, where any such are required, the Court, unless it see cause to the contrary, shall issue the proper warrants for the execution of the decree."
4. I am not called upon at present to express an opinion whether a Court would be bound to issue a warrant of arrest in execution of a decree against a woman who ought not to appear in public, unless it be shown that there are no other means available for obtaining satisfaction. The question now before us is, not whether a Judge has a discretion in the matter, but whether an absolute exemption from arrest exists by law. Mr. Justice Jackson says: " I have not considered the observation thrown out during the argument by Mr. Peterson, namely, that the Court in such cases has at least a discretion to allow the warrant to issue or not, because the decision of the Court below has proceeded on the principle of absolute exemption, and if there is to be a discretion it must be exercised with reference to the circumstances of the particular case, of which, in this instance, we know nothing."
5. Section 201 contains no express exemption of women who ought not to appear in public; and Section 21, to which the reference relates, is in a part of the Act which has relation to an entirely different subject. It is contended, however, that the exemption must necessarily exist by virtue of Section 273, which enacts that the person arrested may, on being brought before the Court, apply for his discharge; and that native ladies would not have the exemption intended to be conferred upon them by Section 21, if they could be brought into Court upon arrest in execution. Probably they would be entitled to waive that which is intended merely as a privilege, but that point does not arise at present. It appears to me that reading Section 21 together with Sections 22 and 273, it was not the intention of the Legislature to exempt from arrest in execution either pardanashin women absolutely u/s 21, or men of rank, if the Government should, u/s 22, grant them exemption from personal appearance in Court.
6. It is urged that it has never been the practice in this country to issue warrants of arrest in execution of decrees against native ladies who ought not to appear in public. I must admit that no such arrest has ever been made within my recollection. This probably has arisen from good feeling, and a general desire not to cause that annoyance and disgrace which, looking to the usage of the country, would necessarily be occasioned by such an arrest. I trust that the same good feeling which has hitherto prevailed will continue to exist, and that the arrest of any woman in execution of a decree, if ever such an arrest be made, will be a very exceptional case.
7. I know nothing of the merits of this particular case, but I consider it exceedingly unfortunate that the first case in which it has been necessary to have the law authoritatively settled by a Full Bench, is one in which the application to arrest a native lady in execution of a decree has been made on behalf of one of her own sex, a Hindu lady, who holds a high rank and position. It is to be regretted that if ever a precedent for such a proceeding shall become necessary, the case of the Maharani of Burdwan against Baradasundari Debi now before us, is the one which must be cited as the case in which the point was determined. The principal Sudder Ameen decided the case on a mere point of law. He says : " as the judgment-debtor belongs to a respectable family, no writ for her apprehension can be issued under the law, and as the record does not show that any other steps have been taken for the recovery of the amount due under the decree, the application of the decree-holder for the issue of a warrant of arrest against the judgment-debtor must be disallowed, and the case struck off the file." The case must go back to the Principal Sudder Ameen, but he must not understand us as deciding that it will be compulsory upon him to issue a warrant of arrest, unless it be shown that the plaintiff has no other means by which she can obtain satisfaction of her decree against the defendant.
Bayley, J.
8. I concur in the answer proposed to be given to the question put to the Full Bench.
Macpherson, J.
9. I concur in the proposed answer. I may add that I think it is perfectly clear, as shown by Mr. Justice Hobhouse, in the observations which he made, when he referred this case to the Full Bench, that there was nothing under the old law which exempted pardanashin women from arrest in execution of decrees; and that in deciding as we now do, we are in no degree altering the practice or declaring the law to be different from what it has been.
L.S. Jackson, J.
10. I have so fully and so lately expressed my opinion upon the question raised in this case, that it is scarcely necessary that I should add any thing to what has fallen from the Chief Justice. After hearing the further argument which has been addressed to us to-day, I adhere to the opinion which I before expressed, an opinion which I am extremely happy to find has the concurrence of my learned brethren on this Bench.
11. I confess, that on the further argument, I had hoped to hear something more made of the exemption supposed to be enjoyed by Hindu ladies of rank, under what may be called the Common Law of the country, to which reference was made by Mr. Peterson in the previous argument. I must say that I am very little pressed by what Mr. Paul has called the practice of the Courts. Very little importance can be attached to an alleged practice, where that practice is based on an entire absence of precedent. It is impossible to say how many or how few ladies of rank may have been taken in execution of decrees, or how many applications for their arrest may have been made without any question being raised as to their exemption. The experience of the vakeels of this Court has been referred to, but it happens that the learned gentlemen who practise in this Court have very little to do with questions relating to the execution of decrees, but their practice is almost wholly confined to arguments in points raised in appeal. Moreover, it is notorious that in the Mofussil, it is almost a rare thing to find that execution of a decree is taken out by means of a warrant for confining the debtor in jail. I myself have seen a Civil Jail for months free of prisoners, male or female.
12. I quite concur in the hope which has been expressed by the Chief Justice, that this decision of the Court will not be followed by many applications of this sort. I am induced to think from the judgment of the Lower Court, and the language in the appeal, that the application in the present case may have been simply with the object of raising the question, and it is not at all certain to my mind that it was a bona fide application with a view to the enforcement of the judgment-debt.
Mitter, J.
I concur with the learned Chief Justice. I wish, however, to add that in exercising the discretion which is always vested in the Civil Courts of this country, in issuing a warrant of arrest under the provisions of Act VIII of 1859, the custom, habits, and feelings of the native community ought not to be altogether overlooked, when the debtor happens to be a native lady of rank. Such was the practice adopted by the late Supreme Court, and that practice ought not to be, in] my opinion, departed from, unless the Court is satisfied that the ends of justice absolutely require that such a warrant should be issued.7
1[Section 21:--Women, who according to the custom and manners of the country ought not to be compelled to appear in public, shall be exempt from personal appearance in Court.]
Exemption of certain women from personal appearance.
2[Sec. 273:--Any person arrested under a warrant in execution of a decree for money may, on being brought before the Court, apply for his discharge on the ground that he has no present means of paying the debt, either wholly or in part, or, if possessed of any property, that he is willing to place whatever property he possesses at the disposal of the Court. The application shall contain a full account of all property of whatever nature belonging to the applicant, whether in expectancy or in possession, and whether held exclusively by himself or jointly with others, or by others in trust for him (except the necessary wearing apparel of himself and his family and necessary implements of his trade), and of the places respectively where such property is to be found, or shall state that with the exceptions above mentioned, the applicant is not possessed of any property, and the application shall be subscribed and verified by the applicant in the manner herein before prescribed for subscribing and verifying plaints. (Amended and supplemented by Act XXIII of 1861, S. 9.)]
On what grounds application for discharge may be made.
Form of application.
Verification.
3[Sec. 212:--The application for execution of a decree shall be in writing, and shall contain in a tabular form the following particulars, namely, the number of the suit, the names of the parties, the date of the decree, whether any appeal has been preferred from the decree, and whether any and what adjustment of the matter in dispute has been made between the parties subsequently to the decree; the amount of the debt or damages due'' upon it, or other relief granted by the decree; the amount of costs, if any were awarded; the name of the person against whom the enforcement of the decree is sought; and the mode in which the assistance of the Court is required, whether by the delivery of property specifically decreed, the arrest and imprisonment of the person named, or attachment of his property, or otherwise, as the case may be. (Amended by Act XXIII, 1861, S. 15).]
Form of application for execution of a decree.
4[Sec. 221:--When all necessary preliminary measures have been taken, where any such are required, the Court, unless it see cause to the contrary, shall issue the proper warrants for the execution of the decree.]
Warrant when to issue.
5[Sec. 222:--Every warrant for execution of a decree shall bear the date of the day on which it is issued, and shall be signed by the Judge and sealed with the seal of the Court, an delivered to the Nazir or other proper cancer of the Court. A day shall be specified in the warrant on ox before which it must be executed, and the Nazir or other proper officer shall endorse upon the warrant the day and the manner in which it was executed or if it was not executed the reason why it was not executed, and shall return it with such endorsement to the Court from which it issued.]
Latest day of execution to be written in warrant, and time and manner execution to be (sic)ed.
6 [Sec. 19:--When an Officer or soldier in the service of the Government is a party to a suit, and cannot obtain a furlough or leave of absence for the purpose of prosecuting or defending the suit in person, he may authorize any member of his family or any other person to commence, conduct, and manage the suit or the defence, as the case may be, in his stead. The authority shall be in writing, and shall be signed by the Officer or soldier in the presence of his Commanding Officer, who shall countersign the same, and it shall be filed in the Court. When so filed, the counter-signature of the Commanding Officer shall be sufficient proof that the authority was duly executed, and that the Officer or soldier by whom it was granted could not obtain a furlough or leave of absence for the purpose of prosecuting or defending the suit in person.
Officers or soldiers who cannot obtain leave of absence may authorize any person to appear for them.
Sec. 20:--Any person who may be authorized, as in the last preceding section mentioned by an officer or soldier to prosecute or defend a suit in his stead, shall be competent to prosecute or defend it in person in the same manner as the officer or soldier could do if present; or he may appoint a pleader of the Court to prosecute or defend the suit on behalf of such officer or soldier. And all notices or processes relative to the suit which may be served upon any person who shall be so authorized as aforesaid by an officer or soldier, or upon any pleader who shall be appointed as aforesaid by such person to act for or on behalf of such officer or soldier, shall be as effectual for all purposes relative to the suit as if the same had been served on the party in person or on a pleader appointed by him.]
The person so authorized may appear personally, or appoint pleader.
7 [On the 15th August 1868, Mr. Money moved before Peacock, G. J., and Mitter, J., on behalf of the Maharani of Burdwan, in the above case, that the case might be sent back to the Division Bench which referred it, in order that the merits might be gone into. He moved upon an affidavit, which stated that the suit of the Maharani of Burdwan was originally brought against the defendant and her husband who had taken a putni in her name; that the putni having been taken in the name of the wife, the husband had been exonerated from liability, but that the debt was really the husband''s; and that all the separate property of the wife had been seized and sold in execution; and that it was under those circumstances, that the warrant for arrest of the lady in execution of the decree had been applied for; that the case was going to be appealed to Her Majesty in Council; and that it was important that all the facts should appear on the record.
