The article is written by Anubhav Janghu, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.com.

 

 

Introduction

The person in whose favor the judgment has been passed is known as the decree-holder while the other one is the judgment debtor. The Code of Civil Procedure (hereinafter referred to as CPC) lays down various ways for execution of the decree, among those, one is arrest and detention that will be dealt with in this article. There have been certain exemptions and immunity given to judgement debtor and it is made sure by the court that no willful defaulter is exempted. It also protects judgement debtor in case he is not in the position to pay.

Decree under CPC

A decree is defined under Section 2(2) of CPC, it has the following essential elements:

1. There should be an adjudication;
2. The adjudication should determine the rights of parties regarding the matter in controversy; and
3. The adjudication should be in a suit and the adjudication should be formal and conclusive so far as that the court is concerned.

Decree can be preliminary if the court adjudicates certain essential elements before deciding on the rest. Final decree is when the suit is disposed and all the controversies in the matter have been adjudicated. Decree deals with the substantive legal rights of the parties, and order which is defined under Section 2(14) of CPC deals with procedural legal rights of the parties and order is always final.

Nature and scope

The nature of these provisions is not punitive but is remedial. The whole purpose to detain a person in civil prison is to compel a person to obey the mandate of the court when he denies to comply without any sufficient cause. Detention in prison does not wipe out a person’s liability to comply.

Provisions dealing with Arrest and Detention

The provision under CPC dealing with arrest and detention for executing a decree are substantive from Sec. 51 to Sec. 59, read with procedural provisions Order 21 Rule 30 to Order 21 Rule 40.

Procedure for arrest

A judgement debtor may be arrested in execution of any decree on any day at any hour with certain conditions to it provided in Section 55 of CPC. The conditions are:

• Must be bought before the court as soon as possible, and his detention may be in the civil prison of the district.
• No dwelling house to be entered after the sunset or before sunrise.
• No outer door of the dwelling house must be broken to enter the house unless the house is in possession of judgement debtor and he refuses to open it.
• If the room is in actual possession of women who is barred by customs to be in public, the officer must give reasonable time to her to withdraw and may enter the room for the purpose of making arrest.
• If the arrest is made where the decree in execution is a decree of money and the judgement debtor pays the amount of decree and cost of arrest to the officer arresting him, the officer must release him at once.

The court before issuing a warrant of arrest must ensure that a notice has been issued to the judgement debtor providing him with an opportunity to explain the reasons for not complying with the court orders. If the court is satisfied by any means, that the judgement debtor may abscond the jurisdiction of the court and any other reasons which would cause in delay of execution of decree, then the court may order for arrest of judgement debtor.

Power and Duty of courts

When the court issues a warrant of arrest of judgement debtor, it shall direct the officer entrusted with its execution to bring the judgement debtor with convenient speed. If the decrial amount along with the interest and cost if any of which judgement debtor is liable to pay is paid earlier then the person should not be arrested. Every person should be given a reasonable opportunity to explain why he should not be arrested. The court must ensure that arrest and detention should only be made if the judgement debtor is willfully defaulting and if the reason to not comply with the court order is not willful then the court may give a reasonable opportunity of showing cause why he should not be committed to the civil prison. Under Rule 40, the court has discretion to refuse the arrest and detention of a debtor who is unable to pay, if the court is satisfied that no useful purpose is served by sending the judgement debtor to civil prison.

It is the duty of the court to conduct the inquiry before order of arrest is passed; if the conclusion of the inquiry is pending then the judgement debtor be detained in the custody of an officer of the court. The judgement debtor can only be detained by the officer of the court for a period not exceeding fifteen days. If at any point the judgement debtor furnishes security to the satisfaction of the court, then the court may release him. The judgement debtor can only be arrested by the order of the court and not by mere presumptions of officer. The court can also order release of judgement debtor if the arrest is not based on a court order.  Warrant without conducting an inquiry is not without jurisdiction if the court had sufficient reasons to believe that judgement debtor is willfully defaulting.

Where the judgement debtor denies that they have any means to repay the decretal amount and the decree-holder failed to bring on record any material regarding the source of income or cash in hand of the judgement debtor, then the order of arrest is not justified and the order of arrest cannot be issued. In ordering the arrest of a judgement debtor to the civil prison, the execution court should exhibit care and caution to ensure each step is contemplated under Section 51 and Order 21 of CPC is followed. When the judgement debtor gives sufficient reasons to court along with the bank statements and default made by him is neither mala fide nor can be called as deliberate refusal, at such point of time the order of arrest is not justified.

Subsistence Allowance under Section 57 of CPC

A judgement debtor shall not be arrested in execution of decree unless and until the decree-holder pays into court such sum as the judge may think fit in accordance with scales fixed under section 57 if no scale has been fixed. The monthly allowance fixed by the court shall be supplied by the party on whose application the judgement debtor has been arrested by monthly payments in advance before the first day of each month. The monthly allowance supplied by the decree-holder must be included in the cost.

Period of detention under Section 58 of CPC

The period of detention in civil prison for execution may be:

• If the amount to be recovered is five thousand or more, the period shall not exceed than the three months.
• If the amount to be recovered is exceeding the two thousand but below five thousand, then the period shall not exceed six weeks.
• If the amount to be recovered is less than two thousand, then no order of arrest to be made.          

Exemptions

There are certain exemptions provided form arrest and detention in the execution of a decree:

• When the decree is of an amount less than two thousand.
• No women shall be arrested in execution of the decree for money.
• Judicial officers.
• Members of Legislative bodies.

Exemption to judicial officers and member of legislative bodies is not exhaustive and at any stage, the court can order for re-arrest. The immunity given to women is absolute and no women can be arrested in execution of money decree at any stage and other remedies for execution can be opted for.

Insolvency

If no act of bad faith is proved against a judgement debtor then he must be given an opportunity to declare himself insolvent. It is the duty of the court to inform the judgement debtor before he may be committed to civil prison that he has an opportunity to be declared insolvent. The court must ensure that the judgement debtor should furnish a surety as to make sure that whenever called upon in any proceedings either insolvency or execution of decree he may be present. The judgement debtor must be given a month period to declare himself insolvent, if he fails to do so then no extension will be granted by the court; if an extension is given, that would be ultravires. On failure to declare insolvency during the prescribed period, the judgement debtor may be arrested at liberty of court.

Release of the judgement debtor under Section 58 of CPC

The judgement debtor may be released any time when the decretal amount along with interest and cost is supplied to either to the court or the officer authorized to arrest. There has been no bar as to when and where the payment is to be made, if the payment is made at the time of arrest then also judgement debtor cannot be arrested.  When the decretal amount mentioned in the arrest warrant differs with the actual amount to be paid, then also it does not provide the immunity to the judgement debtor from arrest.

Re-arrest of the judgement debtor

The immunity has been given to judgement debtor from re-arrest depending upon his earlier period of arrest being already served, he may not be arrested. If the judgement debtor pleads to the court that he is exempted from arrest under section 135 then he is liable of re-arrest at a later stage, whenever the court may deem fit to arrest him. Additionally, if the judgement debtor was arrested but was later released by the court then he can be re-arrested.

Conclusion

The remedy of execution by arrest and execution is an extraordinary remedy, it is not punitive and neither the arrest waves off the right to comply with the court decree. It gives a realization to the decree-holder of the value of decree passed in his favour. It also protects the judgement debtor if he is not in the condition of complying with the court order. Willful defaulters are liable to be arrested. This remedy is twofold as it protects the decree-holder as well as a judgement debtor. This remedy is not exhaustive, and it also prevents unusual harassment of judgement debtor, it also protects judgement debtor by giving subsistence allowance during his period of arrest. There has been ample opportunity given to judgement debtor to prove his intention for not complying with the decree. If the judgement debtor is not a willful defaulter then he may not be arrested and given an opportunity to rectify his mistake. Therefore, these provisions are not stringent.

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