Arrest and detention of JDr (Judgement Debtors) in prison for a duration not
exceeding the period defined in Section 58, where arrest and detention is
permitted under the provision (see Section 51 (c) CPC) is one of the modes of
execution of a decree or order. Detaining a person in civil custody,
notwithstanding the law's permissiveness, is a court order that violates the
individual's human rights. As a result, the judge-made-law has imposed a number
of restrictions on the executing Courts' powers when ordering arrest and
detention in this mode of execution. Before dealing with the intricate issues of
law and procedure in this regard, relevant provisions in the CPC can be referred
to once more.
Section 55 of Civil Procedure Code
Section 55 – Arrest and detention:
- judgment-debtor may be arrested in executionof 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
- 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 authorized 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
- The State Government has the authority to exempt such people from
arrest: The State Government may declare, by notification in the Official
Gazette, that any person or class of people whose arrest might cause danger
or inconvenience to the public shall not be subject to arrest in execution
of a decree unless the State Government prescribes a procedure.
- JDr under arrest will be told of his right to file an insolvency petition:
When a judgement debtor is arrested and brought before the Court in order to
comply with a court order for payment of money, the Court shall advise him that
he will request to be declared insolvent and that he may be discharged if he has
not committed any act of bad faith in connection with the application and
complies with the provisions of the insolvency law in place at the time.
- When a judgment debtor declares his intention to apply to be declared
insolvent and furnishes protection, to the satisfaction of the Court, that
he will apply within one month and that he will appear, when called upon, in
any proceeding relating to the application or the decree in execution of
which he was arrested, he can be released from custody. If he fails to
comply with the court's orders, as a result of the application and
appearance, the Court can either order the protection to be realized or not.
In order to carry out the decision, commit him in a civil jail
Interpretation Of Order 21 Rule37(1)
- Case Law: N. Ramachandra Iyer vs Thomas Mathai
It must be noted that Order 21, Rule 37(1) will apply as per the very words used
therein, only where the application is for the execution of a money decree by
arrest and detention of a judgment-debtor who is liable to be arrested in
pursuance of the application. So, notice under Order 21, Rule 37(1), C.P.C.
cannot be issued to the judgment-debtor, if he is not Liable to be arrested.
As per the Interpretation, while dealing with execution of money decree by
arrest and detention, four situations are expressly and specifically mentioned
in the Civil Procedure Code, where the execution court could order arrest and,
even in these situations it has to be seen whether the judgment-debtor is
actually liable to be arrested.
The first such situation is indicated in the proviso to Order 21, Rule 37(1),
C.P.C. that is, where 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. In such a case, without issuing the notice under
Order 21, Rule 37(1), C.P.C., straightaway the court can order arrest.
The second situation is provided in Order 21, Rule 37(2), C.P.C., as indicated
above, that is where appearance of the judgment-debtor is not made in obedience
to the notice of the court under Order 21, Rule 37(1), C.P.C. and the
decree-holder requires issuance of a warrant for the arrest.
The third situation is under Order 21, Rule 40(3), C.P.C. that is, after the
conclusion of the enquiry under Order 21, Rule 40(1), C.P.C. for detention in
prison and, subject to Section 51, C.P.C. an Order for detention is passed. In
such an event, the court can also pass an order of arrest, if the
judgment-debtor is not already under arrest.
The fourth situation is mentioned in Order 21, Rule 40(4), C.P.C., which says
that a judgment-debtor released under Rule 40 may be re-arrested. Even In the
abovesaid four cases, before arrest order could be passed, the court should find
that any one of the reasons mentioned in the proviso to Section 51, C.P.C.
exists, in the light of the construction placed by the Supreme Court in the
abovesaid Jolly George Varghese v. Bank of Cochin , on Section 51, C.P.C.
When Arrest and Detention may be ordered?When a decree-holder approaches the court to have a decree executed, Section
51(c) of the CPC states that the court can executethe decree by arresting and
detaining the judgement debtor.
In the cases mentioned in Order XXI, a decree for arrest and detention may be
- Under Rule 30, a decree for the payment of 'money can be executed by the
arrest and detention of the judgement debtor.
- Under Rule 31, where the decree is for a specific moveable party, it can be
executed by the arrest and detention of the judgement; debtor.
- Under Rule 32, where the decree is for specific performance of the contract or
an injunction, the court can execute the decree by arrest and detention of the
Procedure To Be Followed
The procedure to be followed for arrest and detention is provided under Section
55. It says that a judgement debtor can be arrested at any hour or any day
during the execution of a decree, and after such arrest, the person must be
presented before the court. However, there are certain restrictions regarding
entry and time.
They are as follows:
- That no dwelling house shall be entered after sunset and before sunrise.
- That no outer door shall be broken in order to enter the house unless
such a house is the occupancy of the judgement debtor, in case he refuses to prevent
- Where the room is in occupancy of a woman who is not the judgement debtor and
does not appear in public due to the customs, the officer shall give reasonable
time and facility to her to withdraw there from.
- Where there is a decree for the payment of money, and the judgement debtor
pays the full decretal amount and the costs of the arrest to the arresting
officer, he shall not be arrested.
In Vemanarayana V. Sakku Bai
 it was held by this court as follows:
Arrest and imprisonment in custody was mentioned as one of the modes of
administering the decree in Section 51 of the Code of Civil Procedure. When the
said mode is used, however, the proviso to the section provides a protection in favour of the judgement debtor. The judgement debtor must be given an
opportunity to prove why he should not be sent to jail as a safeguard. The
proviso goes on to list the different factors that the court should take into
account before ordering execution by arrest and imprisonment. These are the
Reliance was also placed in:
- K.Karunakar Chetty V. Sindicate Bank;
V. Karnataka Bank Limited
Recovery by arrest and imprisonment in execution of decree is one of the modes
provided for by the code of civil procedure, I am compelled to say after
discussing the case law on the point and before parting with the case.
and imprisonment are matters concerning citizens' personal liberty, so arbitrary
arrests have been widely condemned. Most possibly due to the burden of work in
many arrest execution petitions, the courts are issuing haphazard orders that
are not accompanied by any justification and are given on a daily basis without
applying consideration or adequately investigating the matter.
Period Of Detention U/S 58
Section 58 determines the duration of detention during which a person can be
held, which is determined by the amount of the court's order against him and
whether or not he has paid the decreed amount. It states that if the decretal
amount exceeds five thousand rupees, an individual cannot be detained for more
than three months, and that detention for amounts between two and five thousand
rupees cannot exceed six weeks. No order for detention of the judgement debtor
may be made if the total is less than two thousand rupees.
The object of arrest and detention is to provide relief to a decree holder and
to send a judgement debtor to civil prison if he fails to pay the decretal sum
despite having the financial means to do so. It does, however, protect honest
debtors whose failure to pay is due to a fair cause. In order to ensure equal
justice, the court must grant debtors the right to be heard.
The clause is a corrective measure. It aims to give the decree-holder a remedy
after a suit has been determined in his favour. If the judgement debtor fails to
comply with the decree issued against him, such a remedy may be taken in the
form of arrest and imprisonment.
The rule extends to someone who is the target of a Code-enforced decree. If a
decision is issued in a person's favour, the person must go to court to get the
decree carried out. The court will then order the judgement debtor's arrest and
imprisonment based on the Code's provisions.
- Civil Procedure Code,1908, S. 55.
- 1980 AIR 470, 1980 SCR (2) 913
- 1980 AIR 470, 1980 SCR (2) 913.
- 1999 (4) ALT 422.
- AIR 1990 Kant 1, 1989 (1) KarLJ 276
- Civil Procedure Code,1908, S. 55
- AIR 1966 Ker 65.
- 1980 AIR 470, 1980 SCR (2) 913.
- 1999 (4) ALT 422.
- AIR 1990 Kant 1, 1989 (1) KarLJ 276
- AIR 1988 Ker 274