Execution by Arrest and Detention

ABSTRACT

Arrest ordinarily happen when a man is associated with having perpetrated a criminal offense. In
any case, arrest and detention is likewise a method of implementing the pronouncement of a civil
court. It relies on upon the decree holder whether he needs to choose this method of execution.
At the point when the judgment-debtor declines to pay the cash or does not agree to the court's
request, then the decree holder can implement it through arrest. Under the watchful eye of
requesting arrest, a court must record its reasons in composing for doing as such. In any case, it
simply be noticed that negligible failure to pay won't prompt an arrest. There are likewise sure
confinements regarding people who can be arrested. This paper manages the substantive and
procedural parts of such arrest and detention."

Key Words: Arrest , Detention , Execution , Procedure , Decree.

INTRODUCTION

The Code of Civil Procedure lays down various modes of executing a decree. One of such modes
is arrest and detention of the judgment-debtor in a civil prison. 1 The decree-holder has an option
to choose a mode for executing his decree and normally, a court of law in the absence of any
special circumstances, cannot compel him to invoke a particular mode of execution. 2 Sections 55
to 59 and Rules 30 to 41 of Order XXI deal with arrest and detention of the judgment debtor in
civil prison. The substantive provisions deal with the rights and liabilities of the decree-holder
and judgment debtor and procedural provisions lay down the conditions thereof.3

The provisions are mandatory in nature and must be strictly complied with. They are not punitive
in character. The object of detention of judgment-debtor in a civil prison is twofold. On one

1 Section 51(c), Code of Civil Procedure 1908.

2 C.K. Takwani, Civil Procedure, 5th edition (2006), p. 458.

3 Sections 55-59, Code of Civil Procedure 1908.

hand, it enables the decree-holder to realize the fruits of the decree passed in his favor; while on
the other hand, it protects the judgment-debtor who is not in a position to pay the dues for
reasons beyond his control or is unable to pay.4Therefore, mere failure to pay the amount does
not justify arrest and detention of the judgment-debtor in as much as he cannot be held to have
neglected to pay the amount to the decree-holder.

WHEN ARREST AND DETENTION MAY BE ORDERED?

Where the decree is for the payment of money, it can be executed by arrest and detention of the
judgment debtor.5 Likewise, in case of a decree for specific performance of contract or for
injunction, a judgment debtor can be arrested and detained.6 Again, where a decree is against a
corporation, it can be executed with the leave of the court by detention in civil prison of its
directors or other officers.7

WHO CANNOT BE ARRESTED?

As per the Civil Procedre Code, the following classes of persons cannot be arrested or detained
in a civil prison:

1. Judicial officers, while going to, presiding in or returning from their courts8;

2. A woman9;

4 Supra note 1, pp. 438-439.

5 Rule 30 of order XXI.

6 Rule 32 of order XXI.

7Ibid.

8 Section 135(1); Code of Civil Procedure 1908.

9 Section 56; Code of Civil Procedure 1908.

 3. The parties, their pleaders, mukhtars, revenue agents and recognised agents and their
witnesses acting in disobedience to a summons, while going to, or attending or returning
from the court10;

4. Members of legislative bodies11;

5. Any person or class of persons, whose arrest, according to the State Government, might
be attended with danger or inconvenience to the public12;

6. A judgment-debtor, where the decretal amount does not exceed rupees two thousand13;

PROCEDURE

A Judgment-debtor may be arrested at any time and on any day in execution of a decree. The
object of section 55 is to prevent the vexatious forms of resistance to execution proceedings
which constantly obstruct decree-holders in the execution of their decrees. But before a
judgment-debtor can be arrested this section governs his case and lays down certain limitations. 14
After his arrest, he must be brought before the court as soon as practicable. For the purpose of
making the arrest, no dwelling house may be entered after sunset or before sunrise. Further, no
outer door of the dwelling house may be broken open unless such dwelling house is in the
occupancy of the judgment- debtor and he refuses or prevents access there to.15

Again, where the room is in the actual occupancy of a pardanashin woman who is not the
judgment debtor , reasonable time and facility should be given to her to withdraw there from.16

10 Section 135(2); Code of Civil Procedure 1908.

11 Section 135-A; Code of Civil Procedure 1908.

12 Section 55(2); Code of Civil Procedure 1908.

13 Section 58(1-A); Code of Civil Procedure 1908.

14 Infra Note 15
No order of detention of the Judgment-debtor shall be made where the decretal amount does not
exceed rupees two thousand.17 No judgment-debtor may be arrested unless and until the decree-
holder pays into the court the subsistence allowance as fixed by the court.18

Where the Judgment-debtor pays the decretal amount and the costs of arrest to the officer, he
should be release at once.19

15 Section 55 Code of Civil Procedure 1908 reads as followsArrest and detention.- (1) A
judgment debtor may be arrested in execution of a decree at any hour and on any day, and
shall, as soon as practicable, be brought before the Court, and his detention may be in the
civil prison of the district in which the Court ordering the detention is situate, or where such
civil prison does not afford suitable accommodation, in any other place which the State
Government may appoint for the detention of persons ordered by the Courts of such district
to be detained:
Provided, firstly, that, for the purpose of making an arrest this section, no dwelling-house
shall be entered after sunset and before sunrise:
Provided, secondly, that no outer door of a dwelling house shall be broken open unless such
dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way
prevents access thereto, but when the officer authorized to make the arrest has duly gained
access to any dwelling-house; he may break open the door of any room in which he has
reason to believe the judgment-debtor is to be found:
Provided, thirdly that, if the room is in the occupancy of a woman who is not the judgment-
debtor and who according to the customs of the country does not appear in public, the
officer authorized to make arrest shall give notice to her that she is at liberty to withdraw
and after allowing a reasonable time for her to withdraw and giving her reasonable facility
for withdrawing, may enter the room for the purpose of making arrest:
Provided, fourthly, that, where the decree in execution of which a judgment debtor is
arrested, is a decree for the payment of money and the judgment debtor pays the amount
of the decree and the costs of the arrest to the officer arresting him, such officer shall at
once release him.
(2) The State Government may, by notification in the official gazette, declare that any
person or class of persons whose arrest might be attended with danger or inconvenience to
the public shall not be liable to arrest in execution of a decree otherwise than in accordance
with such procedure as may be prescribed by the State Government in this behalf.
(3) Where a judgment debtor is arrested in execution of a decree for the payment of money
and brought before the Court, the Court shall inform him that he may apply to be declare an
insolvent and that he may be discharged if he has not committed any act of bad faith
regarding the subject of the application and if he complies with the provisions of the law of
insolvency for the time being in force.
(4) Where a judgment-debtor expresses his intention to apply to be declared an insolvent
andd furnishes security, to the satisfaction of the Court, that he will within one month so
apply and that he will appear, when called upon, in any proceeding upon the application or
upon the decree in execution of which he was arrested, the Court may release him from
arrest and if he fails so to apply and to appear, the Court may either direct the security to be
realised or commit him to the civil prison in the execution of the decree.

16 Ibid.
In an application for the arrest and the detention of the judgment-debtor, the decree holder must
state or must file an affidavit stating the grounds on which arrest is sought. The burden is very
heavy on the decree-holder to prove that the circumstances specified in the Proviso to section 51
exist.20The court must record reason for the committal of the judgment-debtor to civil prison. In
the absence of reasons, the order is liable to be set aside. 21 Again, a decree for money cannot be
executed by arrest and detention where the judgment-debtor is a woman, 22 or a minor, or a legal
representative of a deceased judgment-debtor.23

NOTICE

Where the decree is for the payment of money and the application is made for arrest and
detention of the judgment-debtor, the court shall, instead of issuing a warrant for arrest, issue a
notice calling upon the judgment-debtor to appear and show cause why he should not be
committed to civil prison in execution of decree. 24 The purpose of issuing notice is to afford
protection to honest debtors incapable of paying dues for reasons beyond their control. 25 This
rule recognizes a rule of natural justice that no person should be condemned unheard. 26The
Court, however, should not issue a notice mechanically. It has an impact on human dignity. The
high value of human dignity and the worth of the human must always be kept in mind.27

The executing Court should necessarily go into the question of means of the judgment-debtor to
pay the decree amount after the latter is arrested and brought to Court and before deciding

17 Section 58(1-A)

18 Order XXI Rule 39 ; Code of Civil Procedure 1908.

19 Sections 58-59;Code of Civil Procedure 1908.

20 I.K Merchants Ltd. Vs Indra Prakash, AIR 1973 Cal 306

21 Ibid.; See also P.G Ranganatha v. Mayavaram Financial Corpn.; AIR 1974 Mad 1.

22 Section 56; Code of Civil Procedure 1908

23 Sections 50,52 ; Code of Civil Procedure 1908

whether the judgment-debtor has to be committed to prison or not. 28From the provisions
mentioned in Rule 37, it is clear that before passing an order of arrest of the judgment-debtor, the
executing Court is required to issue a notice calling upon judgment-debtor to show cause why he
should not be committed to the civil prison. Under the proviso to rule 37, this notice can be
dispensed with if the executing Court is satisfied that the judgment-debtor is likely to abscond or
leave the local limits of the jurisdiction of the Court with the object of delaying the
execution.29The aspect of deliberate refusal or negligence has to be necessarily established by the
decree-holder to the satisfaction of the executing Court.

The Court can refuse to commit the defendant to jail if it is satisfied that the decree against him
was passed without jurisdiction or obtained by fraud or that the judgment-debtor is not in a fit
state of health to undergo confinement.30 The direction for arrest is an extreme consequence that
can be resorted to if there is adequate proof of refusal to comply with a decree in spite of the fact
24 Order XXI, Rule 37 provides: Discretionary power to permit judgment-debtor to
show cause against detention in prison- (1) Notwithstanding anything in these rules,
where an application is for the execution of a decree for the payment of money by the arrest
and detention in the civil prison of a judgment-debtor who is liable to be arrested in
pursuance of the application, the Court shall instead a warrant for his arrest, issue a notice
calling upon him to appear before the Court on a day to be specified in the notice and show
cause why he should not be committed to the civil prison:Provided that such notice shall not
be necessary of the Court is satisfied by affidavit or otherwise, that, with the object or effect
of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave
the local limits of the jurisdiction of the Court.
(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-
holder so requires, issue a warrant for the arrest of the judgment-debtor.

25 Jogendra missir v. Indra prakash, AIR 1968 Pat 218

26 Mayadhar v. Moti, AIR 1984 Ori. 162.

27 Jolly George Verghese v. Bank of Cochin, AIR 1980 SC 470.

28 P.G. Ranaganatha Padayachi v. Mayavaram Financial Corporation Ltd., AIR 1974

Mad 1.

29 Parkash Chand v. Punjab National Bank, AIR 1999 P.&M. 79.

30 Dip Chand v. Naushad, 14 O.C. 36.

that the judgment-debtor is possessed of sufficient means to satisfy the same. Unless this aspect
is adverted to, certainly an order of arrest cannot be made 31. Where a judgment-debtor fails to
appear after a notice under this rule is served on him and a warrant for his arrest is issued by the
Court in the presence of the decree-holders pleader, the proceedings constitute an application to
take a step-in-aid of execution.32

POWER AND DUTY OF COURT

The provision relating to arrest and detention of the judgment-debtor protects and safeguards the
interest of the decree-holder.33 If the Judgment-debtor has means to pay and still he refuses or
neglect to honor his obligation, he can be sent to civil prison. 34 Mere omission to pay, however,
cannot result in arrest or detention of the judgement-debtor.35 Before ordering detention, the court
must be satisfied that there was an element of mala fide or bad faith ,not mere omission to pay
but an attitude of refusal on demand verging on disowning of the obligation under the decree.

A Court executing a decree for money is bound to inform the judgment-debtor when he is
brought under arrest before it that he may apply to be declared an insolvent and that he might be
discharged on complying with the requirement of the law, but not on re-arrest after failing in
insolvency proceedings.36This clause does not entitle the debtor to be declared an insolvent
where his application does not comply with the provisions of insolvency law. 37It is open beyond

31 Iyyam Perumal v. Chinna Gounder, (1984) 1 M.L.J. 195.

32 Chinappa v. Ladasaheb, 19 I.C. 394.

33 Amulya Chandra v. Pashupati Nath, AIR 1951 Cal 48. Also See Harpal Singh v.
Lala Hira Lal, AIR 1955 All 402.

34 Ibid. See Aslo supra note 27

35 Ibid.

36 Arjun Singh v. Gaman, 75 P.R. 1905.

37 Ponnuswami v. Narayanaswami, 14 M.L.T. 304.

the time given to apply at subsequent due, to be declared an insolvent on the strength of the
permission previously given.38 But if the application of a judgment-debtor to be declared an
insolvent has been dismissed and he is re-arrested in execution of decree against him he is not
entitled to a release on expressing his willingness to apply again to be declared an insolvent, so
long as the bar of the previous dismissal is not removed. Prior to the adjudication, the rights are
unaffected.39 A person arrested and brought up before the Court might be discharged on giving
security and stating his intention to apply to be declared an insolvent, but if he has been sent to
prison, he can only be released under Section 58, he cannot obtain his release from prison upon
the mere admission of his subsequent petition of Insolvency under section 21 of the Provisional
Insolvency Act.40

The above principles have been succinctly and appropriately explained by Krishna Iyer, J. in
Jolly George Varghese v. Bank of Cochin,41 in following words:

The simple default to discharge is not enough. There must be some element of bad faith beyond
mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively,
current means to pay the decree or a substantial part of it. The provision emphasizes the need to
establish not mere omission to pay but an attitude of refusal on demand verging on dishonest
disowning of the obligation under the decree. Here considerations of the debtor's other pressing
needs and straitened circumstances will play prominently. We would have, by this construction,
sauced law with justice, harmonized s. 51 with the Covenant and the Constitution.42

His Lordships ultimately propounded:

38 Alagappa Chetti v. Sarathambal, I.L.R. 25 Mad. 724.

39 Kishan Chand v. Sassoon, 83 P.W.R. 1910

40 Woodroffe and Ameer Ali, p. 767.

41 Supra note 27

42 Ibid at p.368(SCC):at pp.475-76 (AIR).

It is too obvious to need elaboration that to cast a person in prison because of his poverty and
consequent inability to meet his contractual liability is appalling. To be poor, in this land of
daridra Narayana, is no crime and to 'recover' debts by the procedure of putting one in prison is
too flagrantly violative of Art. 21unless there is proof of the minimal fairness of his wilful failure
to pay in spite of his sufficient means and absence of more terribly pressing claims on his means
such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in
such a procedure is inferable from Art. 11 of the Covenant. But this is precisely the interpretation
we have put on the Proviso to s. 51 C.P.C. and the lethal blow of Art. 21 cannot strike down the
provision, as now interpreted.

RECORDING OF REASONS

The Court is required to record reasons for its satisfaction for detention of the judgment-debtor.
Recording of reasons is mandatory. Omission to record reasons by the court for its satisfaction
amounts to ignoring a material and mandatory requirement of law 43. Such reasons should be
recorded every time and in every proceeding in which the judgment-debtor is ordered to be
detained.44

DETENTION

43 Ranganatha Padayachi v. Mayavaram Financial Corporation, AIR 1974 Mad 1

44 Ibid.
Section 5845 prescribes a maximum time limit for the judgment-debtors detention, but provides
that the debt is not discharged thereby; the creditor has got a right to proceed against the debtors
property46. It applies to all decrees and not to money decree alone.47 But period of detention
prescribed in section 58 applies to money decree only.48

PERIOD OF DETENTION

Before the section 58 was amended the Court had no authority to fix any term for the
imprisonment of a judgment-debtor under this rule. The period of prior imprisonment that had
elapsed after the passing of the decree was counted and that period plus the new period amounted
altogether to a total period of imprisonment, and then this rule applied. 49A judgment-debtor, who

45 Supra Note 13; Detention and release- (1) Every person detained in the civil
prison in execution of a decree shall be so detained-Where the decree is for the
payment of a sum of money exceeding five thousand rupees, for a period not
exceeding three months, and
2. where the decree is for the payment of a sum of money exceeding two thousand
rupees, but not exceeding five thousand rupees, for a period not exceeding six
weeks:
Provided that he shall be released from such detention before the expiration of the said
period of detention-
1. on the decree against him being otherwise fully satisfied, or
2. on the amount mentioned in the warrant for his detention being paid to the officer-in-
charge of the civil prison, or
3. on the request of the person on whose application he has been so detained, or
4. on the omission by the person, on whose application he has been so detained, to pay
subsistence allowance:
Provided also, that he shall not be released from such detention under Clause (ii) or Clause
(iii), without the order of the Court.
(1-A) For the removal of doubts, it is hereby declared that no order for detention of the
judgment-debtor in civil prison in execution of a decree for the payment of money shall be
made, where the total amount of the decree does not exceed two thousand rupees.
(2) A judgment-debtor released from detention under this section shall not merely by reason
of his release be discharged from his debt, but he shall not be liable to be re-arrested under
the decree in execution of which he was detained in the civil prison.

46 Woodroffe, p. 773.

47 Dodla Narayana v. Veneti Reddemma, AIR 1990 AP 147.

48 Gopal v. Pandya, AIR 1987 Guj. 160.

49 Ghanshamdas v. Joharimall, I.L.R. 7 Bom 431.

has been imprisoned in execution of a decree, if the several periods of his imprisonment be
added together, for more than the maximum period for which he can be legally kept in prison, is
entitled to his release. A judgment debtor cannot be arrested and imprisoned separately for the
default in the payment of each installment50.

According to Patna High Court, the new sub-section (I-A) applies even to pending cases, that is,
to applications filed in force but which were pending on 10 th September, 1976 when the re-
amended section came into force51. Where, however, the decrial amount is more than Rs. 500,
but does not exceed Rs. 1000, the maximum period of detention is six weeks. Where the amount
of the decree exceeds Rs. 1000, the period of detention cannot exceed three months.

RELEASE

A judgment debtor may be released in the following cases:52

1. On the amount mentioned in the warrant being paid;or

2. On the decree against him being otherwise fully satisfied; or
3. On the request of the decree-holder
4. On the omission by the decree-holder to pay subsistence allowance53 ;
5. On the ground of illness.54

50 Damodar v. Malhari, I.L.R 7 Bom 106.

51 Matal Chamar v. Phagu Rai, AIR 1978 Pat 143.

52 Proviso to section 58(1); see also sections 57,59.

53 Ibid.

54 Supra note 19
The provisions of the Section 5955 Civil Procedure Code are self contained and are not controlled
by the provisions of Section 55(3) and (4) and are based on purely humanitarian grounds.56

RE-ARREST

The immunity of judgment-debtor from a second arrest depends not only upon his having been
arrested, but also upon his having been detained in jail under the arrest. Thus, where the
judgment-debtor, while acting as pleader in Court, was arrested and discharged on the ground
that he was exempt from arrest under S. 135 of the Code of Civil Procedure , it was held that he
was liable to be re-arrested in execution of the same decree against him. 57 Similarly, where a
judgment-debtor was arrested, but was liberated without having been sent to jail, owing to non-
payment of subsistence money, it was held that he was liable to be re-arrested in execution of the
same decree.58 Sub-section (2) refers to release from detention in jail and not to release from
detention in the Courthouse.59

A is arrested and committed to jail in execution of a decree against him. While in jail he files his
petition in insolvency, and obtains an interim protection order for one week, and is thereupon
released from jail. He then applies for a further protection order, but his application is refused. Is
55 Ibid. Section 59 states Release on ground of illness.- (1)At any time after a warrant
for the arrest, of a judgment-debtor has been issued, the Court may cancel it on the ground
of his serious illness.(2) Where a judgment-debtor has been arrested, the Court may release
him, if, in its opinion, he is not in a fit state of health to be detained in the civil prison.
(3) Where the judgment-debtor has been committed to the civil prison, he may be released
therefrom-
(a) by the State Government, on the ground of the existence of any infectious or contagious
disease, or
(b) by the committing Court, or any Court to which that Court is subordinate, on the ground
of his suffering from any serious illness.
(4) A judgment-debtor released under this section may be re-arrested, but the period of his
detention in the civil prison shall in the aggregate exceed that prescribed by section 58.

56 Mohd. Sadiq v. Lala Chunni Lal, AIR 1934 Lah 80.

57 Rajendra v. Mohun, (1896) 23 Cal. 128.

58 H. Raham v. Ram sahai, (1904) 26 All 317.

59 Kesar Singh v. Karam Chand, AIR 1937 Lah 253.

A liable to be re-arrested in execution of the same decree? The Calcutta High Court has held that
he is not liable to be re-arrested, on the ground that a judgment debtor was once discharged from
jail, cannot be arrested a second time in execution of the same decree. 60 On the other hand, the
High Court of Bombay has held that A is liable to be re-arrested, as only cases in which a
judgment-debtor is exempt from re-arrest are those specified in this section and that release
under an interim protection order is not one of them.61

60 Judah v. Secretary of State for India, (1886) 12 Cal. 445.

61 Shamji v. Poonja, (1902) 26 Bom 652.