History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.444

v4.c63.444

According to Kāt. quoted in the Vyavahārasāra (p. 101)⁶⁰⁴ the decree should provide for the successful party receiving the interest on or accretions to the movable or immovable property placed (during the pendency of the suit) in the hands of a third party (as a sort of Receiver). Kāt. (477-480) points⁶⁰⁵ out the various ways in which a decree may be executed. The king should make a brāhmaṇa debtor return the decretal debt to the judgment creditor by conciliatory words, should make other debtors return it according to the usage of the country and compel bad people to satisfy the decree by means of physical pain (i. e. imprisonment). The king should make a co-sharer or friend (of the successful party) pay the decretal debt by means of a ruse (i. e. by borrowing an ornament or the like from him on a festive occasion and handing it over to the creditor) and also make traders, husbandmen and artisans (to pay) in a similar way. On finding that the debtor is unable to return the debt in cash, the king should make the debtor, whether a kṣatriya, vaiśya, śūdra or husbandman, work (for the creditor). If he be unable to work the debtor should be sent to jail except when he is a brāhmaṇa. Manu also (IX. 229) says that if the members of the three varṇas other than brāhmaṇa are unable to pay the fine imposed by the king they should be made to work for the king, but a brāhmaṇa may be allowed to pay in easy and small instalments. If a brāhmaṇa debtor was unable to pay, nothing could be done for recovery of the decretal debt except taking a surety from him if any one cared to be one. In modern times also judgment debtors are liable to be arrested and detained in civil jail in execution of decrees under rules 55-58 of the Indian Civil Procedure code (except women in execution of a decree for the payment of money). If in ancient times state policy exempted brāhmaṇas from arrest and detention in a civil jail for monetary debts on spiritual grounds and on the ground of caste, in modern times the State in India exempts agriculturists from arrest or imprisonment in execution of a decree for money on economic grounds under certain legislative enactments like sec. 21 of the Deccan Agriculturists' Relief Act (Bombay Act XVII of 1879). As regards women also Kāt. (488-489) laid down certain prudent rules: "Women who are not⁶⁰⁶ independent should not be arrested (for offences like adultery); it is the male who should be regarded as the offender; women should be punished by their lord (i. e. the person on whom they depend) but the king should take away for punishment the male offender. Even if a woman whose husband has gone abroad be consigned to jail she should be kept imprisoned only till he returns." The Sm. C. II. p. 323 explains that the first verse applies to a woman who can perform the expiation for adultery and who is dependent and the adultery is not with a male of a lower caste.