Shiv Nath Katju, J. - (1.) I have heard learned counsel for the parties at considerable extent. The revision before me has arisen from an order passed by the learned Munsif on an application of the opposite party u/O. 39 R. 2A of the CPC. An order of injunction passed by this court was said to have been defied by the applicants and the opposite party made the aforesaid application for attachment of the applicants' properties. The order of the learned Munsif runs thus: Application is allowed with costs. Opposite parties shall undergo seven days imprisonment in civil prison provided the applicant pays the expenses for their detention within a week. Admittedly the applicants or some of them, were committed to civil prison and remained there for a week. It is contended by the opposite party that he bore the expenses for keeping the applicants in civil custody. These expenses were sought to be recovered in the so -called execution proceedings. The execution court passed the following order: In my opinion since there was no prayer for sending the O.Ps. to civil prison, the first sentence of the order did not apply to detention proceedings. The applicant had to fulfil a condition before sending the O.Ps. to jail. Had the applicant not deposited expenses the O.Ps. would not have been sent to jail. It was duty of the applicant to ascertain about these costs from the court when there was no order for it and there was no prayer in the application. Under these circumstances the applicant is not entitled to costs of detention proceedings because there is no order of the court for it... The aforesaid order was reversed in appeal. The court below has taken the view that the opposite party's "claim to the disputed amount must be allowed by treating it as costs of the execution." The opposite party's application for attachment u/O. 39 R. 2A was allowed by the court with costs. As mentioned above, the prayer in the application was only for the attachment of the applicants' properties and there was no mention in it about committing the applicants to civil prison. The court further added that "the opposite parties shall undergo seven days imprisonment in civil prison provided the applicant pays the expenses for their detention within a week." The CPC lays down the provisions with regard to the arrest and detention of a judgment -debtor in civil prison. They are contained in Ss. 55 to 59 and O. 21 Rr. 37 to 40. In accordance with the aforesaid provisions a judgment debtor can be arrested and committed to civil custody. On such prayer having been made by a decree -holder and its being granted by the court, the court has to fix the monthly subsistence allowance of the arrested person with reference to the class to which the arrested person belongs. The amount of the allowance has to be supplied by the party on whose application the judgment -debtor is to be arrested. Thus the arrest and detention of a judgment -debtor in civil custody in execution of a decree is made at the prayer of the decree -holder himself. The provisions with regard to the arrest and detention of a person u/O. 39 R. 2A runs thus: (1) In the case of disobedience to a(sic) injunction issued u/R. 1 or R. 2, sub -(sic) (2), or of breach of any terms of any such injunction, the Court in which the suit is proceeding may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release. (2) No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the Court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto. It is apparent that the power to commit a judgment -debtor in civil detention in execution of a decree is different than the power of the Court to detain a person who has disobeyed an order of injunction. In such a case the court punishes the person who has defied an order of injunction which has been issued by the court and the detention of such a person is in the nature of punishment. If a court passes an order of detention u/R. 2 -A, then its compliance cannot depend on the will of the parson in whose favour the order of injunction is passed and it cannot be made conditional on the person concerned paying the subsistence allowance of the detained person while he remains in custody.
(2.) The conditional order passed by the court saying that the applicant shall undergo imprisonment in civil prison provided the expenses of detention was paid by the opposite party cannot be said to be a correct order. Either the court should have passed a clear order committing the applicant to civil prison irrespective of the fact whether the subsistence allowance was paid by the opposite party or not or it should not have passed such an order. If the opposite party did not want to take upon himself the burden of keeping the applicants in detention he could easily have refused to pay the required subsistence money and the order of the court would have been nullified. He appears to have been keen to see the applicants in detention and he saw to it that they were kept under arrest. He can not ask the applicants to pay for their own discomfiture in being kept under custody. The subsistence allowance paid by the opposite party can not be treated as costs in execution. I have no hesitation in holding that the opposite party is not entitled to recover the amount spent by him in keeping the applicants in civil prison. The application in revision is allowed with costs and the order of the court below is set aside.;