File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Arrest And Detention Under Civil Procedure Code

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:

  1. 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.[1]
    • 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 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 him.
       
  2. 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.
     
  3.  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.
     
  4. 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)

  1. Case Law: N. Ramachandra Iyer vs Thomas Mathai[2]
    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[3] , on Section 51, C.P.C.
     
  2. 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 issued:
    • 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 judgement debtor.

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:
  1. That no dwelling house shall be entered after sunset and before sunrise.
  2. 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 access thereto.
  3. 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.
  4. 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.

Case Law
In Vemanarayana V. Sakku Bai[4] 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 factors:

Reliance was also placed in:
  • K.Karunakar Chetty V. Sindicate Bank[5];
  • Viswanathan V. Karnataka Bank Limited[6]
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.

Arrest 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.

Conclusion
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.

References:
  1. Civil Procedure Code,1908, S. 55.
  2. 1980 AIR 470, 1980 SCR (2) 913
  3. 1980 AIR 470, 1980 SCR (2) 913.
  4. 1999 (4) ALT 422.
  5. AIR 1990 Kant 1, 1989 (1) KarLJ 276

End-Notes:
  1. Civil Procedure Code,1908, S. 55
  2. AIR 1966 Ker 65.
  3. 1980 AIR 470, 1980 SCR (2) 913.
  4. 1999 (4) ALT 422.
  5. AIR 1990 Kant 1, 1989 (1) KarLJ 276
  6. AIR 1988 Ker 274

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly