Arrest and detention

Arrest & Detention

• 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.
• The decree-holder has an option to choose a mode for executing his
decree.
• Normally, a court of law in the absence of any special circumstances,
cannot compel him to invoke a particular mode of execution.
• Sections 51 to 59 and Rules 30 to 41 of Order XXI deal with arrest and
detention of the judgment debtor in civil prison.
object
• 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 the one hand, it enables the decree-holder to realise the fruits of the
decree passed in his favour;
• 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.
• Therefore, mere failure to pay the amount does not justify arrest and
detention of the judgment-debtor inasmuch as he cannot be held to have
neglected to pay the amount to the decree-holder.
When arrest and detention may be ordered
O.21
• Where the decree is for the payment of money, it can be executed by
arrest and detention of the judgment debtor.[Rule 30] Likewise, in
case of a decree for specific performance of contract or for
injunction, a judgment debtor can be arrested and detained.
[Rule 32(1)] 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.[Rule 32(2)]
Who cannot be arrested
The following classes of persons cannot be arrested or detained in a civil prison:
• Any Judge, Magistrate or other Judicial officers, while going to, presiding in or
returning from their courts shall not be arrested [135(1)];
• the Court shall not order the arrest or detention in the civil prison of a woman in
execution of a decree for the payment of money [Section 56};
• This section exempts all women from arrest in execution of a decree for the
payment of money.
• In Moonshee Buzloor Ruheem v. Shumsoonissa[, it was held that a woman may
however be detained in the civil prison in execution of a decree for restitution of
conjugal rights. Since the amendment in 1923 the decree for restitution of
conjugal rights is enforceable only by the attachment of the property of the
defendant.
• Where any matter is pending before a tribunal having jurisdiction, 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 court [Section 135(2)];
• Members of legislative bodies[Section 135-A];
• Any person or class of persons, whose arrest, according to the State
Government, might be attended with danger or inconvenience to the
public[55 (2)];
• A judgment-debtor, where the decretal amount does not exceed
rupees two thousand [Section 58-1(A)].
Power and Duty of the Court
• The provisions relating to arrest and detention of the judgment-debtor protect
and safeguard the interests of the decree-holder.
• If the judgment-debtor has means to pay and still he refuses or neglects to honour
his obligations, he can be sent to civil prison.
• Mere omission to pay, however, cannot result in arrest or detention of the
judgment-debtor.
• Before ordering detention, the court must be satisfied that there was an element
of bad faith, “not mere omission to pay but an attitude of refusal on demand
verging on demand verging on disowning of the obligation under the decree”.
• The above principles have been succinctly and appropriately explained by Krishna Iyer, J. in Jolly George
Verghese v. Bank of Cochin. He said that
V.R. Krishna Iyer, J
• “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
emphasises 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”.
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.
• Such reasons should be recorded every time and in every proceeding
in which the judgment-debtor is ordered to be detained.[xvii]
Arrest and detention -
Section 55
(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:
Conditions for making Arrest
• (I) for the purpose of making an arrest under this section, no
dwelling-house shall be entered after sunset and before sunrise:
• (II) 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
• (iv) 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
• (v) 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.
• 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
{ Section 55(3)}.
• Where a judgment-debtor fails to apply for insolvency within a period
of one month of his release, the option to commit him to prison or to
realize the security lies with the Court and not with the decree-
holder [Satyanarain Prasad v. Mahabir Prasad, AIR 1937 Pat 476.].
Judgment-debtor
• A woman is exempt from arrest under this section. A woman may,
however, be detained in the civil prison[Order 21 Rule 32] in
execution of a decree for restitution of conjugal rights.
• A judgment-debtor cannot be arrested and imprisoned separately for
the default in the payment of each installment[xxiii]
Section 58
• 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
• 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-
•
(i) on the decree against him being otherwise fully satisfied, or
• (ii) on the amount mentioned in the warrant for his detention being
paid to the officer-in-charge of the civil prison, 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.
Section 58
• (1-A) 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.
• This section prescribes a maximum time limit for the judgment-
debtor’s detention, but provides that the debt is not discharged
thereby; the creditor has got a right to proceed against the debtor’s
property.
• It applies to all decrees and not to money decree alone.
• But period of detention prescribed in section 58 applies to money
decree only.
Section 59 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.
• The provisions of the Section 59 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 [Mohd. Sadiq
v. Lala Chunni Lal, AIR 1934 Lah 80].
Requirements of Section 51 and O.21 rule
37 of the Code
• What is manifest from the provisions of Section 51 and rule 37 of the order XXI
of the CPC is-
• The Court has power conferred upon it under Section 51 of the Code to order the
execution of a decree for the payment of money by arrest and detention of the
judgment-debtor in prison on the application of a decree holder.
• The condition precedent for the exercise of the power is that it should be
prescribed by the Court’s affording an opportunity to the judgment-debtor of
showing cause as to why he should not be committed to civil prison.
• The Court should be satisfied, for reasons to be recorded in writing that the
judgment-debtor has or has had, since the date of the decree, the means to pay
the amount of the decree or some substantial part thereof and that the
judgment-debtor has refused or neglected to pay the same.
• The court instead of issuing a warrant for the arrest of the judgment-
debtor, shall have to issue notice calling upon the judgment-debtor
to appear before the Court and show cause why he should not be
committed to the civil prison.
• Where no such appearance is made in obedience to the notice and if
the decree-holder so requires, it is rendered obligatory on the part of
the Court to issue a warrant for the arrest of the judgment debtor.
• The provisions of section 51 and rule 37 are to be construed as
mandatory.
• The order directing issue of a warrant for arrest of the judgment-
debtor in execution of the money decree is not appealable and as
such revision is maintainable.[Wahengbam Menjor Singh v. Adweta
Debota, AIR 1973 Gau. 84].