Arrest and Detention Under Code of Civil Procedure; A Critique.pptx

Arrest and Detention under Code of Civil
Procedure: A Critique
Md. Jahurul Islam (Assistant Professor) &
Md. Rezaul Haque (Lecturer)
Department of Law
Khwaja Yunus Ali University, Sirajgong, Bangladesh

INTRODUCTION
The term “Arrest” means apprehension of a person by legal authority so as to cause
deprivation of his liberty. 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 and
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. There are specific provisions on arrest and detention in the
Code of Civil Procedure. The Civil Procedure Code, 1908, this code regulates the processes
and procedures that should be followed in courts during civil cases.

INTRODUCTION
• Generally the concept of arrest, detention, imprisonment and fine are
available in case of criminal justice system and these are not resorted in civil
matter. But in some exceptional civil cases the provisions of arrest, detention
and imprisonment come into the scene for smooth administration of civil
justice. The nature of arrest, detention and imprisonment in civil justice
system is dissimilar in many ways from the provisions of arrest, detention and
imprisonment in criminal justice system. In reality the judges of civil courts
are reluctant in application of the provisions of arrest, detention and
imprisonment in the judicial proceedings and they use these weapons as the
last resort to uphold the rights of the litigants and end of justice.

OBJECTS OF THE STUDY
Followings are the objectives of the study;
To recognize the causes behind arrest and detention under CPC in
Bangladesh.
To highlight the existing scenario of arrest and detention under CPC in
Bangladesh

METHODOLOGY
The research is qualitative in nature and methodology of the study is exploratory
based on primary and secondary data and document analysis. Besides some cases
are studied to find out the present position of arrest and detention under CPC in
Bangladesh. (Bari and Islam. MJ-2022). Quantitative approaches also have been
applied in this study.
This study is written primarily by taking the primary and secondary sources such
as existing laws, acts, books, journal and other published works as well as
NGO’s reports, features of national daily newspapers.
Additionally, available published research reports and articles are taken into
consideration while developing arguments and analysis of different dimension of
the arrest and detention under CPC in Bangladeshi society.

NATURE AND SCOPE OF ARREST AND DETENTION
The Code of Civil procedure enumerates various modes of execution. One of such
modes is arrest and detention of the judgement-debtor in a civil prison. The substantive
provision(Sec 55-59) deal with rights and liabilities of the decree holder and judgment-
debtor and procedural provision lay down conditions thereof(Or.21, Rr.30-41).The
provision is remedial in nature. It seeks to supply a remedy to the decree-holder where
a suit has been decided in his/her favour.
Such a remedy is often within the sort of arrest and detention of the judgement debtor if
he/she fails to satisfy the decree passed against him. The provision applies to each
person against whom the decree is passed under the Code. When a decree is passed in
favour of an individual, then that person has got to move to the court for execution of
that decree. The court then consistent with the provisions of the Code can order for
arrest and detention of the judgement debtor.

ARREST AND DETENTION
Section 51(c) of CPC, deals with the situations in which a decree-holder moves to
the court for executing a decree, the court then can execute such decree by the arrest
and detention of the judgement debtor. The decree for arrest and detention could
also be passed within the following cases given under Order XXI: Under Rule 30, a
decree for the payment of cash is often executed by the arrest and detention of the
judgement debtor.
Under Rule 31, where the decree is for a selected moveable party, it is often
executed by the arrest and detention of the judgement debtor. Under Rule 32, where
the decree is for performance of the contract or an injunction, the court can execute
the decree by arrest and detention of the judgement debtor.

PROCEDURE OF ARREST
A judgement debtor could also be arrested in the execution of any
decree on any day at any hour with certain conditions which are
provided in Section 55 of CPC. The conditions are as follows: He/she
must be bought before the court as soon as possible, and his/her
detention could also be within the civil prison of the district. There
should be no homestead that should be entered after the sunset or
before sunrise. There shouldn’t be any outer door of the homestead
must be broken to enter the house unless the home is in possession of
judgement debtor and he/she refuses to open it.

PROCEDURE OF ARREST
If the space is in possession of woman who is barred by customs to be among the public,
the officer must give reasonable time to her to withdraw and should enter the space with
the aim of creating an arrest. If the arrest is formed where the decree in execution may be
a decree of cash and therefore the judgement debtor pays the quantity of decree and price
of arrest to the officer arresting him, the officer must release him directly.
The court before issuing a warrant of arrest must make sure that a notice has been issued
to the judgement debtor providing him with a chance to elucidate the explanations for
not complying with the court orders. If the court is satisfied by any means, that the
judgement debtor may abscond the jurisdiction of the court and the other reasons which
might cause in delay of execution of decree, then the court may order for arrest of
judgement debtor.

PURPOSE OF ARREST AND DETENTION:
In a traditional legal system of a country there are two types of
justice systems namely civil justice system and criminal justice
system to administer justice. The purposes and ends of these
two different justice systems are quite different and procedures
of administering justice are also significantly different. The
main purpose of civil justice system is to determine and uphold
the various rights of the people while the main purpose of the
criminal justice system is to maintain peace and tranquility in
the society by bringing the offenders before courts of law and
sentencing the convicts by sending jail in the name of
imprisonment.

PURPOSE OF ARREST AND DETENTION:
• Generally the concept of arrest, detention, imprisonment and fine are
available in case of criminal justice system and these are not resorted
in civil matter. But in some exceptional civil cases the provisions of
arrest, detention and imprisonment come into the scene for smooth
administration of civil justice. The nature of arrest, detention and
imprisonment in civil justice system is dissimilar in many ways from
the provisions of arrest, detention and imprisonment in criminal
justice system. In reality the judges of civil courts are reluctant in
application of the provisions of arrest, detention and imprisonment in
the judicial proceedings and they use these weapons as the last resort
to uphold the rights of the litigants and end of justice.

ARREST AND DETENTION AT OR BEFORE TRIAL STAGE
• Arrest and detention of witness: Section 32
• Arrest and detention of Defendant: Under Order XXXVIII Rule 1
• Arrest and detention at post trial stage: The last stage of a civil
proceeding is the execution of the decree passed by the court. Apart
from the other modes of execution of decree the court may on the
application of the decree holder order the execution of the decree by
arrest and detention in prison.

SPECIAL PROVISON IN CASE OF WOMAN:
Section 56 of the Code of Civil Procedure refers prohibition of arrest or detention of
women in execution of decree for money. The Court shall not order the arrest or
detention in the civil prison of a woman in execution of a decree for money.
According to order 21, Rule 32 a woman cannot be arrested for restitution of
conjugal rights.

WHEN JUDGEMENT DEBTOR MAY BE ARRESTED:
The Court has the discretion to allow or refuse execution against the person and
property of the judgement-debtor at the same time. The mere fact that the warrant
for attachment of property has been issued may be sufficient to refuse arrest of the
judgement-debtor, but when the judgement-debtor evaded payment it will not be a
sufficient ground for refusing a warrant of arrest.
When the decree provides that for satisfaction of the decree only out of the property
of the judgement-debtor, the judgement-debtor cannot be arrested in execution of
the decree

SUBSISTANNCE ALLOWANCE FOR DETAINEE
• A judgement debtor shall not be arrested in execution of decree
unless and until the decree-holder pays into court such sum because
the judge might imagine slot in accordance with scales fixed under
section 57 if no scale has been fixed. The monthly allowance fixed by
the court shall be supplied by the party on whose application the
judgement debtor has been arrested by monthly payments
beforehand before the primary day of every month. The monthly
allowance supplied by the decree-holder must be included within the
cost.

WHO CANNOT BE ARRESTED:
The following people are exempted from being arrested and detained due to the
provisions under the CPC:
I. Women, as per Section 56,
II. Judicial officers, as per Section 135(1),
III. Where a matter is pending, their pleaders, advocate, revenue-agents, and
witnesses acting in obedience to a summons, under Section 135(2),
IV. Members of legislatures, as per Section 135A,
V. Classes of persons, whose arrest consistent with the government, could be
attended with danger or inconvenience to the general public, under Section
55(2), and
VI. Where the decretal amount is a smaller amount than two thousand rupees,
under section 58(1A).

RECORDING FOE REASON OF ARREST AND
DETENTION:
The Court is required to record reasons for its satisfactory for detention of the
judgement-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
judgement-debtor is ordered to be detained.

PERIOD OF DETENTION
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 fifty taka, for a
period of six months, and
In any other case for a period of six weeks.

RELEASE OF JUDGEMENT -DEBTOR
Section 58-59
A judgement-debtor may be released in the following cases:
On the amount mentioned in the warrant being paid; or
On the decree against him being otherwise fully satisfied; or
On the request of the decree-holder; or
On the omission by the person , on whose application he has been 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 judgement-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.Sec. 58

CONCLUSION
 The remedy of execution by arrest and execution is an extraordinary remedy, it's
not punitive and neither the arrest waves off the proper to suits the court decree. It
gives a realization to the decree-holder of the worth of decree passed in his favour.
It also protects the judgement debtor if he's not within the condition of complying
with the writ. Willful defaulters are susceptible to be arrested. This remedy is
twofold because it protects the decree-holder also as a judgement debtor.
This remedy isn't exhaustive, and it also prevents unusual harassment of judgement
debtor, it also protects judgement debtor by giving subsistence allowance during
his period of arrest. There are many opportunities given to judgement debtor to
prove his/her intention for not complying with the decree. If the judgement debtor
isn't a willful defaulter, then he/she might not be arrested and given a chance to
rectify his mistake. Therefore, these provisions aren't stringent.

Arrest and Detention Under Code of Civil Procedure; A Critique.pptx

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