Indian Laws in English

The Code Of Civil Procedure 1908
Order 21 :
Rule 40 :
1.[Proceedings on appearance of judement-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 the 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.]
State Amendment :
High Court Amendments-[Andhra Pradesh] :
Same as in Madras except for the omission in sub-rule (6) of the words at the end of that sub-rule beginning with "and the Judge signing the warrant".
[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 scale 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-rules (6) and (7) added to rule 40 are the same as those of Madhya Pradesh.-(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 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.
The provisions of sub-rule (5) of rule 39 shall apply to such payments."-(R.O.C. No. 2526/1959, dated 9-2-1967).
[Kerala] :
Same as in Madras except for the substitution of the word "Munsif" for the words "District Munsif" in sub-rule (6).-(9-6-1959).
[Madhya Pradesh] :
In Order 21, rule 40, the following shall be inserted as sub-rules (6), (7) and (8) below sub-rule (5), namely:
"(6) When a judgment-debtor is ordered to be detained in the custody of an officer of the 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;
(b) for the payment to the officer of the Court in whose custody the judgment-debtor is placed of 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."-(16-9-1960).
[Madras] :
(1) For old sub-rule (6) 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).
(2) Add the following sub-rule:
"(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."-(5-9-1968).
--------
1. Substituted by Act 21 of 1936, section 4, for rule 40.       

INSTALL Android APP

*Note : All content on this website is for only educational purpose do not use it any where as legel activities and Publisher or owener is not responsible for any mistake if any mistake please suggest us. we will try to improve that.