Arrest and detention of JDr (Judgement Debtors) in prison for a duration not exceeding the

period defined in Section 58, where arrest and detention is permitted under the provision (see
Section 51 (c) CPC) is one of the modes of execution of a decree or order. Detaining a person
in civil custody, notwithstanding the law's permissiveness, is a court order that violates the
individual's human rights. As a result, the judge-made-law has imposed a number of
restrictions on the executing Courts' powers when ordering arrest and detention in this mode
of execution. Before dealing with the intricate issues of law and procedure in this regard,
relevant provisions in the CPC can be referred to once more.

Section 55 � Arrest and detention:

(1) judgment-debtor may be arrested in executionof 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.[1]
• Provided, firstly, that, for the purpose of making an arrest under 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 actual 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 the 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 the 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 has the authority to exempt such people from arrest: The State
Government may declare, by notification in the Official Gazette, that any person or class of
people whose arrest might cause danger or inconvenience to the public shall not be subject to
arrest in execution of a decree unless the State Government prescribes a procedure.
(3) JDr under arrest will be told of his right to file an insolvency petition: When a judgement
debtor is arrested and brought before the Court in order to comply with a court order for
payment of money, the Court shall advise him that he will request to be declared insolvent
and that he may be discharged if he has not committed any act of bad faith in connection with
the application and complies with the provisions of the insolvency law in place at the time.

(4) When a judgment debtor declares his intention to apply to be declared insolvent and
furnishes protection, to the satisfaction of the Court, that he will apply within one month and
that he will appear, when called upon, in any proceeding relating to the application or the
decree in execution of which he was arrested, he can be released from custody. If he fails to
comply with the court's orders, as a result of the application and appearance, the Court can
either order the protection to be realized or not. In order to carry out the decision, commit
him in a civil jail

Interpretation Of Order 21 Rule37(1)

Case Law: N. Ramachandra Iyer vs Thomas Mathai[2]
It must be noted that Order 21, Rule 37(1) will apply as per the very words used therein, only
where the application is for the execution of a money decree by arrest and detention of a
judgment-debtor who is liable to be arrested in pursuance of the application. So, notice under
Order 21, Rule 37(1), C.P.C. cannot be issued to the judgment-debtor, if he is not Liable to be
arrested.

As per the Interpretation, while dealing with execution of money decree by arrest and
detention, four situations are expressly and specifically mentioned in the Civil Procedure
Code, where the execution court could order arrest and, even in these situations it has to be
seen whether the judgment-debtor is actually liable to be arrested.

The first such situation is indicated in the proviso to Order 21, Rule 37(1), C.P.C. that is, where
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. In such a case, without issuing the notice under Order 21, Rule
37(1), C.P.C., straightaway the court can order arrest.

The second situation is provided in Order 21, Rule 37(2), C.P.C., as indicated above, that is
where appearance of the judgment-debtor is not made in obedience to the notice of the court
under Order 21, Rule 37(1), C.P.C. and the decree-holder requires issuance of a warrant for
the arrest.

The third situation is under Order 21, Rule 40(3), C.P.C. that is, after the conclusion of the
enquiry under Order 21, Rule 40(1), C.P.C. for detention in prison and, subject to Section 51,
C.P.C. an Order for detention is passed. In such an event, the court can also pass an order of
arrest, if the judgment-debtor is not already under arrest.
The fourth situation is mentioned in Order 21, Rule 40(4), C.P.C., which says that a judgment-
debtor released under Rule 40 may be re-arrested. Even In the abovesaid four cases, before
arrest order could be passed, the court should find that any one of the reasons mentioned in
the proviso to Section 51, C.P.C. exists, in the light of the construction placed by the Supreme
Court in the abovesaid Jolly George Varghese v. Bank of Cochin[3] , on Section 51, C.P.C.

When Arrest and Detention may be ordered?

When a decree-holder approaches the court to have a decree executed, Section 51(c) of the
CPC states that the court can executethe decree by arresting and detaining the judgement
debtor.

In the cases mentioned in Order XXI, a decree for arrest and detention may be
issued:
Under Rule 30, a decree for the payment of 'money can be executed by the arrest and
detention of the judgement debtor.
Under Rule 31, where the decree is for a specific moveable party, it can be executed by the
arrest and detention of the judgement; debtor.
Under Rule 32, where the decree is for specific performance of the contract or an injunction,
the court can execute the decree by arrest and detention of the judgement debtor.

Procedure To Be Followed
The procedure to be followed for arrest and detention is provided under Section 55. It says
that a judgement debtor can be arrested at any hour or any day during the execution of a
decree, and after such arrest, the person must be presented before the court. However, there
are certain restrictions regarding entry and time.
 They are as follows:
(1) That no dwelling house shall be entered after sunset and before sunrise.
(2) That no outer door shall be broken in order to enter the house unless such a house is the
occupancy of the judgement debtor, in case he refuses to prevent access thereto.
(3) Where the room is in occupancy of a woman who is not the judgement debtor and does not
appear in public due to the customs, the officer shall give reasonable time and facility to her
to withdraw there from.
(4) Where there is a decree for the payment of money, and the judgement debtor pays the full
decretal amount and the costs of the arrest to the arresting officer, he shall not be arrested.

Case Law
In Vemanarayana V. Sakku Bai[4] it was held by this court as follows:

Arrest and imprisonment in custody was mentioned as one of the modes of administering the
decree in Section 51 of the Code of Civil Procedure. When the said mode is used, however, the
proviso to the section provides a protection in favour of the judgement debtor. The judgement
debtor must be given an opportunity to prove why he should not be sent to jail as a
safeguard. The proviso goes on to list the different factors that the court should take into
account before ordering execution by arrest and imprisonment. These are the factors:

Reliance was also placed in:

• K.Karunakar Chetty V. Sindicate Bank[5];
• Viswanathan V. Karnataka Bank Limited[6]
Recovery by arrest and imprisonment in execution of decree is one of the modes provided for
by the code of civil procedure, I am compelled to say after discussing the case law on the
point and before parting with the case.

Arrest and imprisonment are matters concerning citizens' personal liberty, so arbitrary arrests
have been widely condemned. Most possibly due to the burden of work in many arrest
execution petitions, the courts are issuing haphazard orders that are not accompanied by any
justification and are given on a daily basis without applying consideration or adequately
investigating the matter.

Period Of Detention U/S 58

Section 58 determines the duration of detention during which a person can be held, which is
determined by the amount of the court's order against him and whether or not he has paid
the decreed amount.
(a) It states that if the decretal amount exceeds five thousand rupees, an individual cannot be
detained for more than three months, and
(b) that detention for amounts between two and five thousand rupees cannot exceed six weeks.
 No order for detention of the judgement debtor may be made if the total is less than two
thousand rupee
Provided that he shall be released from such detention before the expiration of the said
period of six months or six weeks, as the case may be,-
(i) on the amount mentioned in the warrant for his detention being paid to the officer in
charge of the civil prison, or
(ii) on the decree against him being otherwise fully satisfied, or
(iii) on the request of the person on whose application he has been so detained, or
(iv) 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.
(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.

Suits by or Against Government | 10 Oct 2023

Introduction
Section 79, Section 80 and Order XXVII of the Civil Procedure Code, 1908 (CPC) deal with
the procedure where the suits are brought by or against the Government or Public officers
acting in an official capacity.

Section 79, CPC

• Section 79 is a procedural provision and contains provisions in relation to the suits by or
against the government.
• It states that in a suit by or against the Government, the authority to be named as plaintiff
or defendant, as the case may be, shall be—
1) in the case of a suit by or against the Central Government, the Union of India, and

2) in the case of a suit by or against a State Government, the State.

• No cause of action is provided in this section, and it only declares the mode of the procedure
when the cause of action arises.
• In Jehangir v. Secretary of State (1904), the High Court of Bombay held that Section 79 of
CPC only declares the mode of the procedure when the cause of action arises.
• Under this section, only the courts within whose local limits, the cause of action arises, have
the jurisdiction to try the suit.

Section 80, CPC

• Section 80 of CPC deals with the provisions relating to notice which a condition precedent
before filing a suit against the government or against a public servant.
• It states that -

(1) Save as otherwise provided in sub-section (2), no suits shall be instituted against the
Government or against a public officer in respect of any act purporting to be done by such
public officer in his official capacity, until the expiration of two months after notice in
writing has been delivered to, or left at the office of—

(a) in the case of a suit against the Central Government, except where it relates to a
railways, a Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to railway, the
General Manager of that railway;

(c) in the case of a suit against any other State Government, a Secretary to that
Government or the Collector of the district and, in the case of a public officer, delivered to
him or left at his office, stating the cause of action, the name, description and place of
residence of the plaintiff and the relief which he claims; and the plaint shall contain a
statement that such notice has been so delivered or left.

(2) A suit to obtain an urgent or immediate relief against the Government or any public officer in
respect of anyact purporting to be done by such public officer in his official capacity, may be
instituted, with the leave of the Court, without serving any notice as required by sub-
section (1); but the Court shall not grant relief in the suit, whether interim or otherwise,
except after giving to the Government or public officer, as the case may be, a reasonable
opportunity of showing cause in respect of the relief prayed for in the suit.
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or
immediate relief needs to be granted in the suit, return the plaint for presentation to it after
complying with the requirements of subsection (1).

(3) No suit instituted against the Government or against a public officer in respect of any act
purporting to bedone by such public officer in his official capacity shall be dismissed merely
 by reason of any error or defect in the notice referred to in sub-section (1), if in such
notice—

(a)

(b) (a) the name, description and the residence of the plaintiff had been so given as to enable
the appropriate authority or the public officer to identify the person serving the notice and
such notice had been delivered or left at the office of the appropriate authority specified in
sub-section (1), and

(c) (b)the cause of action and the relief claimed by the plaintiff had been substantially
indicated.

• The object of the notice is to give the government or public servant an opportunity to
reconsider its or his legal position and to make amendments if so, advised by the legal
expert.
✓ In Bihari Chowdhary v. State of Bihar (1984), the Supreme Court held that the object of
Section 80 of CPC is the advancement of justice.
• This Section applies to all suits whether they are suits for injunctions or suits for declarations
and suits for damages.
✓ It does not apply to the writs filed before the High Court or the Supreme Court.

A notice must contain:

• Name, description, and place of residence of the person giving notice
• A statement of the cause of action.
• The relief claimed by the person.

Order XXVII, CPC

This order deals with the Suits by or against the government or public officers in their
official capacity.
• Rule 1 of Order XXVII states that in any suit by or against the Government, the plaint or
written statement shall be signed by such person as the Government may, by general or
special order, appoint in this behalf, and shall be verified by any person whom the
Government may so appoint and who is acquainted with the facts of the case.

• Rule 2 of Order XXVII states that the persons being ex officio or otherwise authorized act
for the Government in respect of any judicial proceeding shall be deemed to be recognized
agents by whom appearances, acts and applications under this Code may be made or done on
behalf of the Government. Rule 3 of Order XXVII states that in suits by or against the
Government, instead of inserting in the plaint the name and description and place of
residence of the plaintiff or defendant, it shall be sufficient to insert the appropriate name
as provided in section 79 of CPC.
• Rule 4 of Order XXVII provides that the Government Pleader shall be the agent of the
Government for the purpose of receiving processes against the Government by the Court.

• Rule 5 of Order XXVII provides that the Court will, in fixing the day for the Government to
answer the plaint, shall allow a reasonable time for the necessary communication with the
Government through the proper channel.

• Rule 5A of Order XXVII provides that the Government will be joined as a party in a suit
against a public officer in respect of any act alleged to have been done by him in his official
capacity. Rule 5B of Order XXVII deals with the duty of Court in suits against the
Government or a public officer to assist in arriving at a settlement.

• Rule 6 of Order XVII provides that the court can direct the attendance of a person who is
able to answer any material question relating to the suit against a government.

• Rule 7 of Order XVII deals with the extension of time to enable public officers to make
reference to the Government.

• Rule 8 of Order XVII provides that where the government undertakes a defense of suit
against a public officer, the government pleader will apply to the court for the same and
court upon such application shall cause a note of his authority to be entered in the register of
civil court. If no application is made by a government pleader, then the case shall proceed as
in a suit between private parties:
• Rule 8A of Order XVII provides that no such security as is mentioned in rules 5 and 6 of
Order XLI shall be required from the Government.
• Rule 8B of Order XVII contains the definition of Government and Government pleader.
Res Judicata (Section 11)
No Court shall try any suit or issue in which the matter directly and extensively in issue has
been directly and extensively in issue in a former suit among the same parties, or among
parties under whom they or any of them claim, litigating under the same title, in a Court
competent to try such suit later or the suit in which such issue has been raised later, and has
been heard and finally decided by such a Court.
Explanation I: The expression ‘former suit shall mean a suit which has been decided earlier to
the suit in question whether or not it was appointed prior thereto.
Explanation II: For the purposes of this section, the appropriateness of the Court shall be
determined irrespective of any provisions as to a right of appeal from the decision of such
Court.
Explanation III: The matter above mentioned to must in the former suit have been asserted by
one party and either renounced or admitted, precisely or impliedly, by the other.
Explanation IV: Any matter which might or must have been made ground of defence or attack
in such a former suit, shall be considered to have been a matter directly and substantially in
issue in such suit.
Explanation V: Any relaxation claimed in the plaint, which is not specifically granted by the
decree, shall, for the purposes of this section be deemed to have been refused.
Explanation VI: Where persons litigate bona fide in respect of a public right or of a private
right alleged in common for themselves and others all persons interested in such right shall,
for the purposes of this section, be deemed to allege under the persons so litigating.
Explanation VII: The provisions of this section shall administer to a proceeding for the
execution of a decree and references in this Section to any suit, issue or former suit shall be
explained as references, respectively, to a proceeding for the execution of the decree,
question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII: An issue heard and finally decided by a Court of limited jurisdiction,
competent to determine such issue, shall operate as res judicata in a subsequent suit,
nevertheless that such Court of limited jurisdiction was not adequate to try such subsequent
suit or the suit in which such issue has been subsequently raised.
Object of Res Judicata
“Res judicata pron veriate accipitur” is the full maxim which has over the years decreased to
mere “res judicata”. It is well decided that Section 11 of the Code of Civil Procedure is not
comprehensive of the general doctrine of res-judicata and though the rule of res-judicata as
legislated in Section 11 has some technical aspects the general doctrine is established on
considerations of high public policy to attain two objectives namely, that there must be finality
to litigation and that person should not be harassed twice over with the same kind of
litigation. (Gulam Abbas v. State of Uttar Pradesh[5]).
In Halsbury’s Laws of England, the following observation regarding Res judicata is stated:
“Res Judicata is a rule of universal law that pervades every well-regulated system of
jurisprudence and is based on two grounds, each of which is represented in a different
maxim of the common law: the first is public policy and necessity, which makes it to the
state’s interest to end litigation; the second is the hardship to the individual of being vexed
twice for the same cause.”

Conditions for Application of Res Judicata

In order to establish a matter as res judicata, the following conditions must be fulfilled :-
(i) There must be two suits, one former suit and other consecutive suit.
(ii) The Court which determined the former suit must be competent to try the subsequent
suit.
(iii) The matter directly and substantially in issue must be the same either literally or
constructively in both the suits.
(iv) The matter directly and subsequently in issue in the subsequent suit must have been
heard and finally decided by the Court in the former suit.
(v) The parties to the suits or the parties under whom they or any of them claim must be
the same in both the suits.
(vi) The parties in both the suits must have prosecuted under the same title.

Exceptions to the Plea of Res Judicata

Judgment in original suit acquired by fraud – if a court assumes that the judgment of former
suit is obtained by fraud, then the doctrine of the res judicata is not used.
When the previous SLP is dismissed – When a special leave petition is dismissed without
decision then res judicata should not be used. For obtaining Doctrine of Res Judicata, the
formal suit should be decided by the competent court.
A different cause of action – Section 11 will not be used when there is a different cause of
action in the consecutive suits. The court cannot bar a consecutive suit if it contains a different
cause of action.
When there is Interlocutory Order – Interlocutory order is the interim order, decree or
sentence delivered by the court. A principle of the Res Judicata will not be used when an
interlocutory order is passed on the former suit. It is because in Interlocutory order
immediate relief is given to the parties and it can be modified by subsequent application and
there is no finality of the decision.
Waiver of a decree of Res Judicata – Decree of Res Judicata is a plea in the bar that must be
waived by the opposing party. If a party fails to raise the defense of res judicata, the case will
be determined in his favor. It is the responsibility of the opposing party to inform the court of
the outcome of the previous suit. If a party fails to do so, the matter is settled against him.
Court not competent to decide – When the former suit is settled by the court who has no
jurisdiction to decide the matter then the doctrine of res judicata is not used to the
subsequent suit.
When there is a change in Law – When there is a change in the law and new laws bring new
rights to the parties then such rights are not prohibited by Section 11.
When the court fails to apply Res Judicata
If the court fails to apply for res judicata and instead issues a contrary judgement on the same
issue, the matter will be sent to the third court, which will apply res judicata based on the
prior suit’s decision. Thus it is the function and authority of the parties to the suit to bring the
former case to the attention of the court and the Judge will determine on whether a plea of
Res judicata should be allowed or not.