Where the court proceeds with the case in ignorance of the fact of death of a
person and passes a decree, that decree cannot be treated as a nullity. It may,
no doubt, be a wrong decree, but it will have to be set aside by taking
appropriate proceedings like appeal, revision or review. Generally speaking, a
decree passed in favour of a dead person is not a nullity, though a decree
passed against a dead person can be construed as a nullity.
Even if there is
abatement of the suit that would not make the decree passed in the suit as one
without jurisdiction and the executing court is not entitled to refuse to
execute the decree on the ground that the plaintiff was not alive on the date
when the decree was passed in his favour.
Arrest and detention in execution of a decree:
One of the modes of executing
decrees is arrest and detention in civil prison of the judgment-debtor.
Sections 55 to 59 and Rules 37 to 41 of Order 21 deal with arrest and detention
of the judgment-debtor in civil prison.
Section 55 provides that 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, except that:
- For the purposes of making an arrest under this section, no dwelling
house shall be entered after sunset and before sunrise.
- 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 authorised 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.
- 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.
- Where the decree in execution of which a judgment debtor is arrested, is
a decree of 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.
Order XXI Rule 37 of the Code of Civil Procedure deals with the discretionary
power of the court to issue Show Cause Notice to the judgment debtor against
detention in prison. It provides that 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 of issuing 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 if 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. Sub-section (2) Rule 37 lays down
that 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 judgment
Sub-section (3) of section 55 of the Code of Civil Procedure also lays
down that 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 the provisions of the law of insolvency for the time
being in force.
Section 56 of the Code of Civil Procedure provides that a woman shall not be
arrested in execution of decree in payment of money.
Section 57 of the Code of Civil Procedure deals with the subsistence allowance
payable by the decree holder for the subsistence of the judgment debtor.
According to it, the State Government may fix scales graduated according to
rank, race and nationality of such monthly allowance.
Period of Detention
Section 58 of the Code of Civil Procedure deals with the period of detention.
According to it 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 one
thousand rupees, for a period not exceeding three months.
- Where the decree is for the payment of a sum of money exceeding five
hundred rupees, but not exceeding one thousand rupees, for a period not
exceeding six weeks.
How ReleasedProvided that he shall be released from such detention before the expiration
of the said period of detention:
- On the amount mentioned in the warrant for his detention being paid to
the officer in charge of the civil prison.
- On the decree against him being otherwise fully satisfied.
- On the request of person on whose application he has been so detained.
- On omission to pay subsistence allowance by person on whose application
he was so detained Provided also that he shall not be released from such
detention under clause (ii) or (iii) without the order of the court.
Award Winning Article Is Written By: Mr.Mohd Aqib Aslam
Authentication No: SP26211616735-18-920