History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.149

v4.c63.149

The plaintiff may put under restraint till the approach of the summoner (the bailiff) by the king's order the defendant, who does not stand up to meet the claim (i. e. is about to abscond or may abscond) that is to be investigated (or when the plaintiff spoke to him about the claim before coming to court) and who disregards the words of the claimant. This is called *āsedha* which is explained by the Mit. on Yāj. II. 5 as restraint under the king's order. It is of four kinds viz. restraint as to (*sthāna*) place (e. g. you are not to go elsewhere from your house or a temple), as to time (e. g. you must present yourself on the 5th of a certain month), restraint from going on (*pravāsa*) a journey (till the suit is decided) and restraint from doing certain actions (e. g. you are not to sell certain property or to plough a certain field till the disposal of the suit)³⁹⁶. The rules about āsedha are laid down by Nār. (I. 47-54), Bṛ. (q. by V. P. p. 42, Sm. C. II. pp. 30-31), Kāt. 103-110 (all quoted by V. P. pp. 41-42, Sm. C. II. pp. 30-31). Nār. (I. 54) states that those persons whose personal appearance is dispensed with as stated above are not to be subjected to āsedha. Nārada provides that he who disregards the prohibitory order (āsedha) of the court should be punished and that he who obtains a restraint order against a person that should not have been thus proceeded against should also be punished. Acc. to Kāt. that man who restrains the defendant so as to prevent him from exercising his limbs or from talking or breathing freely should be punished and not the defendant if he breaks such restraint. A defendant would not be liable to be fined, if he disregards a restraint order which ties him down to a river ford, or to a forest, to a bad place (infested by thieves and tigers) or at the time of an invasion (Nār. I. 49). There is a provision which looks like one for the appointment of a Receiver in modern times. Kāt. (120) says 'A king should not allow a litigant to proceed if the litigant retains the property or money which he has (been shown to have) seized; it should be delivered over to the opposing litigant (if he be trustworthy) or it may be kept with a third person (as receiver for the successful party)³⁹⁷. When the defendant comes on being summoned, he and the plaintiff are both to be placed before the judges (Pitāmaha q. in Sm. C. II. p. 34). Then a surety is to be taken from both who would be capable of carrying out the decree made by the court i. e. who would be able to pay the amount of fine to the king if the defendant denied the plaintiff's claim or who would be able to pay double the amount of the claim if the plaintiff's claim be found to be false (Yāj. II. 10–11). If any one of the parties cannot offer a surety, then he has to be kept in the custody of the court's bailiff (sādhyapāla) and has to pay the daily wages of the bailiff at the end of every³⁹⁸ day (Kāt. 117 q. by Mit. on Yāj. II. 10). The following persons could not be accepted as sureties (Kāt. 114–116 q. by Mit. on Yāj. II. 57): 'the master (in the case of a party being a servant), an enemy, one authorised by the master, one arrested, one fined, one accused of grave sins or offences, one who is a co-sharer in family property, a friend, one who is a perpetual student, one who is appointed to do the king's business, ascetics, one who would not be able to pay the amount decreed and the fine to the king, one whose father is living, one who incites the party for whom surety is demanded, one whose antecedents are unknown.' When a person (of any caste) is kept guarded for want of a surety he is not to be prevented from doing necessary and obligatory acts (bath, *sandhyā* worship &c.) and if he runs away from the guard he should be fined eight paṇas (Kāt. 119 q. in Par. M. III. 58).