Arrest And Detention Under Execution

Arrest And Detention

Section 55 of Code of Civil Procedure 1908 “Arrest 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 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 authorised 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 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 declared 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 provisions of the law of insolvency for the time being in force.

(4) Where a judgment-debtor express his intention to apply to be declared an insolvent and 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 execution of the decree.

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 hand, it enables the decree-holder to realize the fruits of the decree passed in his favour; 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. 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.

Where the decree is for the payment of money, it can be executed by arrest and detention of the judgment-debtor. Likewise, in case of a decree for specific performance of contract or for injunction, a judgment-debtor can be arrested and detained. 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.

Who cannot be Arrested – Sections 56, 58, 135, 135-A

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

Judicial officers, while going to, presiding in or returning from their Courts;
A woman;
The parties, their pleaders, mukhtars, revenue agents and recognized agents and their witnesses acting in disobedience to a summons, while going to, or attending or returning from the Court;
Members of legislative bodies;
Any person or class of persons, whose arrest, according to the State Government, might be attended with danger or inconvenience to the public;
A judgment-debtor, where the decretal amount does not exceed rupees two thousand.

Jolly George Verghese V/s. Bank of Cochin (1980) 2 SCC 360.

The provisions relating to arrest and detention of the Judgment Debtor protect and safeguard the interest 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”, which has been explained by the Hon’ble Krishna Iyer J.

The provision for issuing notice and affording opportunity to the judgment-debtor to show cause recognizes a rule of natural justice that no person should be condemned unheard.

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 amount 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.

Section 56 of Code of Civil Procedure 1908 “Prohibition of arrest or detention of women in execution of decree for money”

Notwithstanding anything in this Part, 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 57 of Code of Civil Procedure 1908 “Subsistence allowance”

The State Government may fix scales, graduated according to rank, race and nationality, of monthly allowances payable for the subsistence of judgment-debtors

Section 58 of Code of Civil Procedure 1908 “Detention and release”

(1) Every person detained in the civil prison in execution of a decree shall be so detained,

(a) where the decree is for the payment of a sum of money exceeding 1 [2 [five thousand rupees], for a period not exceeding three months, and,]

3[(b) 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.]

4(1A) 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 5 [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.

The period of detention of the judgment-debtor in civil prison shall be (a) up to three months, where the decretal amount exceeds Rs. 5000 and (b) up to six weeks, where the decretal amount exceeds Rs. 2000 but does not exceed Rs. 5000. • Where the decretal amount does not exceed Rs. 2000 no detention can be ordered

Section 59 CPC – Code of Civil Procedure – 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 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 a 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 not in the aggregate exceed that prescribed by section 58.

Re-arrest of Judgment-Debtor

Normally, a judgment-debtor once released, cannot be re-arrested in the execution of the same decree. But if a judgment-debtor is released because of the mistake of the jail authorities, he can be re-arrested. Similarly, where the judgment-debtor could not be sent to jail, due to non payment of the subsistence allowance by the decree-holder, his re-arrest is not unlawful. Again, release of the judgment-debtor on the ground of illness does not debar his arrest. The total period of actual detention, however, cannot exceed the maximum prescribed in the Code.