History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.631
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.631
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Several were the modes of the recovery of debts. Manu (VIII. 47-48) requires the king to make the debtor repay his debt to the creditor in whatever way he can do it. There is a difference in the modes of recovery according as the liability is admitted by the debtor or not. If liability is denied then the only method is to file a suit for the recovery of the debt. But if the liability is admitted by the debtor, then Manu VIII. 49 (=Nār. IV. 122), and Bṛ. (S. B. E. vol. 33 p. 329 v. 54) mention five means of recovery viz. *dharma* (persuasion), *vyavahāra* (legal proceeding), *chala* or *upadhi* (trick), *ācarita* (sitting down at his door), or *bala* (compulsion to do work or confinement). It appears from Āp. Dh. S. (I. 6. 19. 1) that the method of sitting at the door for recovery of debts was known to Āp. (the creditor so doing is designated *pratyupaviṣṭa*). In a Marwad Inscription dated *samvat* 1198 (1141-42 A. D.) this practice is called *kāya-vrata* (*yadi brāhmaṇaḥ kāyavratam kṛtvā mriyate*). Vide E. I. vol. XI. p. 37 at p. 40. These modes of recovery except vyavahāra are explained by Bṛhaspati as follows:⁷³³ The method of dharma consists in sending messages (to the debtor) from his friends and relatives, in persuading him to pay with sweet words, by following the debtor (i. e. by persistent dunning) and by frequent requests.
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Trick consists in the creditor borrowing from the debtor some ornament or other article under the pretext of its being required in a festival and not returning it or in retaining what the debtor has handed over to the creditor for being delivered to another; that is compulsion when the debtor is brought to the creditor's house, is then confined or beaten and thus induced to repay the debt; that is *ācarita* where the creditor keeps tied his own wife or son or cattle at the debtor's house or sits down at his door (fasting). All these methods could not be employed in the case of all debtors. Kāt. (477-480) has already been cited (on p. 383) to show how the king is to employ the various methods in the case of brāhmaṇas, traders &c. If the creditor employs any one of the methods (other than vyavahāra) and harasses a debtor when the latter claims judicial investigation and there is a doubt or dispute between the two as to the amount, the rate of interest, the liability to pay, the creditor would lose his claim and would have to pay a fine equal (to the claim)⁷³⁴. Kāt. 589 and Bṛ.⁷³⁵ (S. B. E. vol. 33, p. 331 verses 63-65) lay this down.
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But when the debtor admits his liability and yet does not pay and when the creditor therefore employs one of the means (other than a suit) appropriate to the caste and position of the debtor, then, if the debtor complains to the king against the creditor, the debtor would be compelled by the king to pay the debt and a fine for unnecessary complaint (Yāj. II. 40, Manu VIII. 176, Viṣṇu Dh. S. VI 19). Kāt. (580-584) provides that where⁷³⁶ it is the custom of the country, the creditor may hold the debtor in restraint openly before an assembly of people until he pays what is due, that when a man so restrained has an inclination to answer calls of nature, he should be followed behind by the creditor or he should be allowed to go alone but fettered, that he should be allowed to go home for his meals and at night if he furnishes a surety, and that the surety will have to remain in restraint (while the debtor is absent), that if the debtor cannot secure a surety or does not accept the proposal of furnishing one he should be confined in jail or should be kept guarded by men; but that a respectable man who is trust-worthy and pure in conduct should not be put in jail, that he should be allowed to go without fetters or after being bound by an oath. Manu VIII. 177, Yāj. II. 43, Nar. IV.
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131 lay down that if a debtor is unable to pay a debt then he should be made to do work suitable to his caste in the house of his creditor of the same or higher caste in order to gradually liquidate the debt (but without detriment to his own family) and a brāhmaṇa debtor should be made to pay by easy instalments⁷³⁷. Kauṭ. III. 11 provides⁷³⁸ that agriculturists and king's servants should not be seized (for debts) at the time when it is the season for them to work, nor a woman for her husband's debt unless she has promised to repay her husband's debt, but wives of cowherds and those who take a lease of lands for half produce may be arrested for non-payment by the husband. As compared with the harsh legislation against debtors in most ancient and medieval systems of jurisprudence the rules laid down by the smṛtis are very mild and humane⁷³⁹. If there were several creditors there was priority among them i. e. the earlier debt prevailed over the later one; a brāhmaṇa creditor however (whatever the date of his advance) was preferred to a kṣatriya or other creditor (Yāj. II. 41, Kāt. 514). Kauṭ.⁷⁴⁰ states that the debts owed to the Crown and a śrotriya take precedence over other debts and that unless the debtor is going to abscond several creditors should not simultaneously proceed against one debtor. Section 56 of the Bombay Land Revenue Code makes Government assessment a paramount charge on the land. But acc. to Kāt.
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(513) if several debts were contracted in writing on the same date, they should all be treated as equal and paid off *pro rata* from the debtor's assets if insufficient; but, if a creditor established that a particular article belonging to a debtor was manufactured by the debtor with his money only, that creditor alone got the money recovered by sale of the article (Kāt. 515). Bharadvāja states⁷⁴¹ that if a debtor has no cash then the creditor should be paid by sale of the debtor's other property in order viz. grain, gold, iron, cattle, clothes, land, slaves, and conveyances, (in the absence of fields) his garden and lastly his house and in the absence of even a house time should be granted to debtors of the three higher castes.