A Project of Code of Civil Procedure Arrest Before Judgment
One of the modes of executing a decree 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 absence of special
circumstances, cannot compel him to invoke a particular mode of execution.
Section 55 to 59 and Rules 30 to 41 deal with arrest and detention of the
judgment debtor in civil person. The court enumerates various modes of
execution. One such mode is arrest of judgment debtor in a civil. The
substantive prison provisions deal with the rights and liabilities of the decree
holder and judgment debtor and procedural provisions lay down conditions
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 realise
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
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. 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
Who Cannot Be ArrestedAs per the Civil Procedre Code, the following classes of persons cannot be
arrested or detained in a civil prison:
- Judicial officers, while going to, presiding in or returning from their court;
- A woman;
- 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;
- 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
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
, in the 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 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. Here, a consideration of the
debtor’s other pressing needs and straitened circumstances will play
prominently. We would have, by this construction, sauced law with justice,
harmonised Section 51 with the covenant and the Constitution.”It was ultimately propounded:
“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 Article 21 unless 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 Article 11 of the covenant. But this is precisely the
interpretation we have put on the proviso to 51 of CPC and the lethal blow of
Article 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. Such reasons should be recorded every time and in
every proceeding in which the judgment-debtor is ordered to be detained.
Substantive ProvisionsSection 55Section 55 reads as follows:
Arrest and detention.-
- 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.
- 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
- 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.
- Where a judgment-debtor expresses 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 the execution of the decree.
Object of the section
The object of this section 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.
Applicability of this section
It has been provided by this section that a judgment-debtor may be arrested in
execution of a decree at any hour of the day and on any day of the month and
shall as soon as practicable be brought before the Court subject to the
That no dwelling or house shall be entered after sunset and before sunrise.
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
prevent 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 judgment-debtor is to be found.
That if the room is in the actual occupation of a woman who is not the
judgment-debtor and who according to customs does not appear in public, the
officer authorized to make arrest shall have to give a notice to her that she is
at liberty to withdraw and allow her reasonable opportunity to withdraw
therefrom before entering into the room for the purpose of making arrest.
That if the decree is for the payment of money, no arrest shall be made if the
judgment-debtor pays the full decrial amount and the costs of the arrest to the
officer arresting him.
A woman is exempt from arrest under this section. A woman may, however, be
detained in the civil prison in execution of a decree for restitution of
Who May be arrested
The Civil Procedure Code does not prevent a judgment-debtor from being arrested
a second time on account of the same decree where he has been released on the
application of the judgment creditor. A judgment-creditor has the option of
enforcing his decree against the person or the property or both of the
judgment-debtor. It is otherwise, however, where the decree is against the
property only. A judgment-debtor cannot be arrested and imprisoned separately
for the default in the payment of each installment. A person is not protected
from arrest in the execution of decree, merely because his property is in the
hands of the receiver in insolvency.
Exemption from arrest of certain persons
Clause (2) of this section is intended to cover the cases of certain persons or
classes of persons whose summary arrest might, as in the case of Railway
Servants, be attended with danger or inconvenience to the public in general.
However, where a suit is brought against such a person, the fact that he could
not be arrested in execution is not a ground for not passing a decree against
Court’s duty after the arrest of the judgment-debtor
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. This
clause does not entitle the debtor to be declared an insolvent where his
application does not comply with the provisions of insolvency law. It is open
beyond the time given to apply at subsequent due, to be declared an insolvent on
the strength of the permission previously given.
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. 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.
Arrest and Insolvency
If a judgment-debtor against whom an order for arrest has been made, is
adjudicated insolvent without a protection order, the adjudication does not
prevent his arrest and the court of execution must require the judgment-debtor
to give security under the latter part of sub-section (4) that he will appear
when called upon in any proceeding in insolvency or upon the decree in execution
of which he was arrested.
Expresses his intention to apply to be Declared Insolvent
This expression of intention is equivalent to a statement made to the
judgment-creditor by the judgment-debtor of an intention to suspend the payment
of his debts. It is, therefore, an act of insolvency as defined in section 9 of
the Presidency-Towns Insolvency Act. If the surety is furnished and accepted,
the order cannot be reviewed and a direction is given for the execution of a
fresh surety bond.
Section 55(4) provides for a time limit of one month within which the
judgment-debtor must apply to be declared insolvent. The court has no power to
extend the period of one month for applying for adjudication. Section 148 does
not apply to such a case. The word ‘month’ is introduced into this section by
way of defining the obligation of the surety. The intention expressed is to be
declared insolvent and not to be declared insolvent at the end of a month
provided nothing does turn up. 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
Discharge of Surety
Sub-section (4) makes it clear that where a security bond is passed in the terms
of that sub-section, that is, where a surety undertakes:
That the judgment-debtor will within one month apply to be declared an
Will appear, when called upon, in any proceeding upon the application or upon
the decree in execution of which he was arrested, the security will be realized
when there is failure to comply with either condition. The surety, however, is
not released by the mere filing by the judgment-debtor of the petition in
insolvency; the security continues until a final order is made on the petition.
A bona fide petition is sufficient compliance with the condition of the bond.
When a bona fide petition was presented within one month but was rejected as not
being in proper form and a fresh petition was presented later and the debtor was
adjudged insolvent, the surety was discharged. A security-bond furnished for the
appearance of the judgment-debtor is in the nature of continuing guarantee and
when the surety produces the judgment-debtor before the Court and requests to be
absolved from further liability under the bond, the Court should not refuse to
grant the prayer, but he cannot be discharged unless he has fully carried out
A surety under this section is discharged by the death of the judgment-debtor
before breach of either of the two conditions mentioned above. But the death of
the judgment-debtor after the first condition has failed, namely, the
undertaking to apply to be declared an insolvent within one month, cannot affect
the surety’s liability with regard to that condition. A surety is also
discharged if the execution proceedings are struck off or dismissed for default
of appearance even though they are subsequently restored, but not if liability
had already accrued under the bond by a breach of either of the two conditions
before the proceedings were struck off. If the court makes an erroneous order
discharging a surety, the decree-holder may apply for revision of the order, but
cannot treat it as a nullity.
Sub-section (4) provides that if the judgment-debtor fails to apply or to
re-appear, the Court may either direct the security to be realized or commit the
judgment-debtor to prison. This is an alternative and not a concurrent remedy.
It does not mean that the Court can proceed both against the surety and the
judgment-debtor. If the surety is proceeded against and the amount is recovered
from him, the judgment-debtor is committed to jail, in execution. If the
judgment-debtor is committed to jail, the position is just the same as if the
surety had never come forward. But the mere fact that the judgment-debtor is
re-arrested or that a warrant is issued against him is not sufficient of itself
to discharge the surety.
Damages for arrest
In a suit for damages on account of arrest the plaintiff must show:
Appeal or revision
- that the original action, out of which the alleged injury arose, was
decided in his favour;
- that the arrest was procured maliciously without the reasonable and
probable causes and
- that he has suffered “some collateral wrong.
An order made under Section 55(4) is appealable. An order refusing executing of
decree simultaneously against the person and property is appealable as a decree;
so is an order under Section 55(4) rejecting an application for the forfeiture
of a security bond; so is an order passed by the Court executing a decree for
the imprisonment of the judgment-debtor. But an order refusing to discharge a
surety from liability under a bond in terms of this section is not appealable,
nor is an order refusing an application for recovery of the amount decreed from
When the surety makes an application to have his surety bond cancelled the order
is passed on such application. It is not appealable his remedy is by the way of
Section 56 provides that:
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.
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.
Security for costs
A woman cannot be arrested in execution of a decree for the payment of money;
at the same time, if the plaintiff is a woman and her suit is for the payment of
money, she may be required to give security for the defendant’s costs.
The Section 57 says:
The State Government may fix scales, graduated according to rank, race and
nationality, of monthly allowances payable for the subsistence of judgment
No arrest without subsistence allowance
A judgment-debtor shall not be arrested in execution of a decree unless and
until the decree-holder deposits into the Court, an amount fixed by the judge,
sufficient for the sake of subsistence of judgment-debtor, from the time of his
arrest until he can be brought before the Court. And on the omission by the
decree-holder to pay the subsistence allowance may result in the release of the
Section 58 reads as under:
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
Provided that he shall be released from such detention before the expiration of
the said period of detention- on the decree against him being otherwise fully
satisfied, or on the amount mentioned in the warrant for his detention being
paid to the officer-in-charge of the civil prison, or on the request of the
person on whose application he has been so detained, or on the omission by the
person, on whose application he has been so detained, to pay subsistence
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.
Scope of the section
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.
Period of detention
Before the section 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, then this rule applied. A judgment-debtor, who 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 installment.
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
10th September, 1976 when the re-amended section came into force. 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.
Discharge of the debtor on the request of the decree-holder
Where the decree-holder applied for execution of his decree after the release of
the judgment-debtor on the request of the decree holder, he was met by the
objection that an adjustment had taken place. The matter was the subject of
inquiry because it was a proceeding taken out of Court. The High Court, however,
held that the decree-holder was bound to state why he applied to have debtor
discharged and that if no adequate reasons were shown must be taken to have had
his decree satisfied.
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.
642 of the Code of Civil Procedure (now S. 135), it was held that he was liable
to be re-arrested in execution of the same decree against him. 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. Sub-section (2) refers to
release from detention in jail and not to release from detention in the
Interim protection order
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 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. 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.
Contempt of Court
This section does not apply to cases of imprisonment for contempt of Court.
Satisfaction of the Decree
The question that arises is whether the debt can be said to have been discharged
merely because the judgment-debtor has been detained in civil prison for a full
term. Section 51 of the CPC merely prescribes different modes for achieving an
object. If the object is the realization of the dues, this object cannot be said
to have been achieved merely because the judgment-debtor was detained in civil
prison. It is for this reason; there is provision in sub-section (2) of section
58 of the CPC that a judgment debtor released from detention shall not, merely
by reason of his release, be discharged from his debt.
Release on ground of illness.-
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.
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.
Where the judgment-debtor has been committed to the civil prison, he may be
released there from-
by the State Government, on the ground of the existence of any infectious or
contagious disease, or
by the committing Court, or any Court to which that Court is subordinate, on the
ground of his suffering from any serious illness.
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.
Provisions of the section whether controlled by Sections 53(3) and (4)
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.
The adoption of either or both courses lies entirely within the discretion of
the Court. A court is not bound to issue a warrant of arrest.
Order XXI, Rule 37
Order 37 provides:
Discretionary power to permit judgment-debtor to show cause against detention in
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.
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
Scope and application
Notice may be issued against a judgment-debtor who in other execution
proceedings has made an application to be declared insolvent. The Court can
issue warrant for the arrest of the judgment-debtor only when he fails to make
appearance in obedience to the notice issued under rule 37(1). If he makes
appearance, the Court is to proceed with the enquiry as contemplated in rule 40.
Upon the conclusion of such enquiry if the Court decides to make an order for
detention of the judgment-debtor in the civil prison, it can cause him to be
arrested if he is not already under arrest, as provided in sub-rule (3) of rule
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 whether the judgment-debtor has to be
committed to prison or not. From 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. The 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. 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 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. 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-holder’s pleader, the proceedings constitute an application to take a
step-in-aid of execution.
Requirements of Section 51 and 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
use of word ‘shall’ makes the provision mandatory. When each and every step
contemplated under section 51 and order 21, CPC is mandatory and when the
liberty of the petitioner is involved, the executing Court must exhibit care and
caution to ensure that each step is followed scrupulously. In the case, since
the order under revision disclosed that there was a clear deviation from the
prescribed procedure, it cannot be sustained. The same is accordingly set aside.
The purpose of issuing a notice is to afford protection to honest debtors
incapable of paying dues for reasons beyond their control. This rule recognizes
a rule of natural justice that no person should be condemned unheard. The 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.
When a notice is issued to the judgment-debtor under sub-rule (1), he must
appear in person. It is not sufficient to appear through counsel. Where the
judgment debtor appears in obedience to such notice and the Court is satisfied
that he is unable to pay the decrial amount, the Court may reject the
application for arrest. On the other hand, where the judgment-debtor appears but
fails to show cause to the satisfaction of the Court against arrest and
detention, or does not appear in obedience to the notice, the Court must make an
order of detention or issue a warrant of arrest of judgment-debtor.
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
Order XXI, Rule 38
Warrant for arrest to direct judgment-debtor to be brought up- Every warrant for
the arrest of a judgment-debtor shall direct the officer entrusted with its
execution to bring him before the Court with all convenient speed, unless the
amount which he has been ordered to pay, together with the interest thereon and
the cost (if any) to which he is liable, be sooner paid.
Warrant for arrest to direct judgment-debtor to be brought up
The officer is only empowered to arrest and detain the judgment-debtor for such
a reasonable time as is sufficient to allow of his being brought before the
Incorrect amount in warrant
The judgment-debtor has to pay amount ordered to be paid in the warrant and if a
mistake has been committed in calculating the figure it is open to the
judgment-debtor to take appropriate proceedings in Court.
Order XXI, Rule 39
No judgment-debtor shall be arrested in execution of a decree unless and until
the decree-holder pays into the Court such sum as the Judge thinks sufficient
for the subsistence of the judgment-debtor from the time of his arrest until he
can be brought before the Court.
Where a judgment-debtor is committed to the civil prison in execution of a
decree, the Court shall fix for his subsistence such monthly allowance as he may
be entitled to according to the scales fixed under Section 57 or where no such
scales have been fixed, as it considers sufficient with reference to the class
to which he belongs.
The monthly allowance fixed by the Court shall be made to the proper officer of
the Court for such portion of the current month as remains unexpired before the
judgment-debtor is committed to the civil prison and the subsequent payments (if
any) shall be made to the officer-in-charge of the civil prison.
Sums disturbed by the decree-holder for the subsistence of the judgment-debtor
in the civil prison shall be deemed to be costs in the suit:
Provided that the judgment-debtor shall not be detained in the civil prison or
arrested on account of any sum so disturbed.
The subsistence money must be paid in advance by the execution-creditor before
the execution can be put in force. The prisoner has a right to be discharged on
the happening of any one of the contingencies specified in section 58. On a
failure of the subsistence money ordered, the detention of the prisoner becomes
illegal and he is immediately entitled to his discharge. There is no form of
application imperatively necessary for him to adopt in asking for his discharge
on a failure of subsistence money.
Fixation of installment
The fixation of installments after an enquiry into the means and the ability of
the judgment-debtor to pay in many cases is much fairer to the judgment-debtor
who, whilst not being in a position to discharge the decree in full, can
certainly pay something towards its discharge. After the installments have been
fixed by the Court, then a failure to comply with the Court order would
immediately justify arrest and commitment to prison. This procedure would be
perfectly admissible under proviso (b) to the Section 51.
Order XXI, Rule 40:
Proceedings on appearance of the judgment-debtor in obedience to notice or after
When a judgment-debtor appears before the Court in obedience to a notice issued
under rule 37, or is brought before the Court after being arrested in execution
of decree for the payment of money, the Court shall proceed to hear the
decree-holder and take all such evidence as may be produced by him in support of
his application for execution, and shall then give the judgment-debtor an
opportunity of showing cause why he should not be committed to the civil prison.
Pending the conclusion of the inquiry under sub-rule (1), the Court may, in its
discretion, order the judgment-debtor to be detained in the custody of an
officer of the Court or release him on his furnishing security to the
satisfaction of the Court for his appearance when required.
Upon the conclusion of the inquiry under the sub-rule (1), the Court may,
subject to the provisions of the Section 51 and to the other provisions of this
Code, make an order for the detention of the judgment-debtor in the civil prison
and shall in that event cause him to be arrested if he is not already under
Provided that in order to give the judgment-debtor an opportunity of satisfying
the decree, the Court may, before making the order of detention leave the
judgment-debtor in the custody of an officer of the Court for a specified period
not exceeding fifteen days or release him on his furnishing security to the
Court for his appearance at the expiration of the specified period of the decree
be not sooner satisfied.
A judgment-debtor released under this rule may be re-arrested.
When the Court does not make an order an detention under sub-rule (3), it shall
disallow the application and, if the judgment-debtor is under arrest, direct his
The new rule and Section 51
The new rule has to be read with section 51. Under the old rule, it was not
necessary for the decree holder to lead, in the first instance, any evidence in
support of his application for the arrest of the judgment-debtor. When the
judgment-debtor appeared or was brought before the court, he had to prove that
from ‘poverty or other sufficient cause’ he was unable to pay the decrial
amount, in default of which an order of commitment could ordinarily be made.
Now, the procedure is regularized and the Court has to hold a formal inquiry in
which the decree-holder has, in the first instance, to lead evidence in support
of his application and then when a prima facie case for commitment is made out,
the Court must give the judgment-debtor an opportunity of showing cause against
Inquiry under order 21, rule 40 is mandatory at least in contested cases, acting
only on an affidavit before the issue of warrant is irregular.
The Court is under an obligation to follow the above procedure and that is not
dependent on whether the judgment-debtor has or has not shown cause in response
to a notice issued under rule 37. The Court shall proceed to hear the
decree-holder and to take all such evidence as may be produced by him in support
of his application for execution. It shall then give an opportunity to the
judgment-debtor of showing cause why he should not be committed to civil
But no order for commitment can be made unless the Court is
satisfied on any of the grounds set out in the proviso to section 51 and other
provisions of the Code that the commitment of the judgment-debtor to civil
prison is necessary; the burden of proving this will obviously lie on the
decree-holder. Then, again, the proviso to section 51 requires the Court to
record its reasons in writing before making an order of commitment. It will be
noticed that the matters which the Court may take into consideration under
sub-rule 2 of the old rule 40 are now incorporated in the proviso to section 51
and are not to be found in the new rule.
Scope of the rule
The use of word ‘then’ in the provision requiring the Court to give the judgment
debtor an opportunity of showing cause does not mean that the Court necessarily
has to adjourn the case to another date. The privilege conferred by the proviso
to section 51 of the Code on the judgment-debtor cannot be waived at all.
In order to give the judgment debtor an opportunity of satisfying the decree,
the Court before making the order of detention, may leave the judgment-debtor in
the custody of an officer of the Court. The executing Court can continue to
exercise its judicial jurisdiction regarding detention of judgment-debtors in
Civil Prison until the expiry of maximum period of three months provided that
the concerned judgment-debtor gets a right to be released in accordance with
proviso to section 58(1) of the CPC or the Court cannot exercise its power to
order re-arrest in view of section 58(1)(a) of the CPC.
Sub-rule (2) provides that the Court may release the judgment-debtor on his
furnishing security, which means furnishing proper security and not illusory
Bakshi, P.M., Supplement to Mulla’s Code of Civil Procedure 14th ed., (N.M.
Tripati Pvt. Ltd., 1992).
Chitaley, D.V., AIR Commentaries: The Code of Civil Procedure (All India
Reporter Limited, 1972).
Mehta, M.S., A Commentary on the Code of Civil Procedure ( Wadhwa and Company,
Takwani, C.K., Civil Procedure, 3d ed., ( Eastern Book Company, 1996).
Written By: Sagar Gujjar
- (Ll.B), Roll No.1805230007, 3rd Sem