arrest and detention
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The article has been written by Ayush Verma, a 2nd-year student at RMLNLU, Lucknow. The article discusses the arrest and detention under the CPC and various provisions related to it.

Introduction

A decree is passed by the court under the Code of Civil Procedure (hereinafter referred to as CPC) to decide the rights and liabilities of the persons in a matter of controversy. The person in whose favour a decree is passed is called decree-holder and against whom the decree is passed is judgement debtor. There are various ways under civil law by which a decree can be passed. One such way is “arrest and detention”. The law relating to arrest and detention in the CPC has been dealt with under Section 51 to 59 and Rules 30 to 40 of Order XXI.

Nature and scope

The provision is remedial in nature. It seeks to provide a remedy to the decree-holder where a suit has been decided in his favour. Such a remedy can be in the form of arrest and detention of the judgement debtor if he fails to satisfy the decree passed against him.

The provision applies to every person against whom the decree is passed under the Code. When a decree is passed in favour of a person, then that person has to move to the court for execution of that decree. The court then according to the provisions of the Code can order for arrest and detention of the judgement debtor.

When arrest and detention may be ordered?

Under Section 51(c) of CPC, it is given that when a decree-holder moves to the court for executing a decree, the court can execute such decree by the arrest and detention of the judgement debtor.

The decree for arrest and detention may be passed in the following cases given under Order XXI:

  • 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.

Who cannot be arrested?

There are certain classes of persons that are exempted from arrest and detention under the various provisions of CPC. Such persons include:

  1. Women, as per Section 56,
  2. Judicial officers, as per Section 135(1),
  3. Where a matter is pending, their pleaders, mukhtars, revenue-agents, and witnesses acting in obedience to a summons, under Section 135(2),
  4. Members of legislatures, as per Section 135A,
  5. Classes of persons, whose arrest according to the State Government, might be attended with danger or inconvenience to the public, under Section 55(2), and
  6. Where the decretal amount is less than two thousand rupees, under section 58(1A).

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 therefrom.
  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.

Notice

Under Order XXI Rule 37, a person who is to be arrested shall be given a show-cause notice to appear before the court and give reasons as to why he should not be committed to the civil prison in execution of the decree. However, such notice is not necessary if the court is satisfied, by affidavit or otherwise, that the effect of delaying the execution can lead to absconding of the jurisdiction by the judgement debtor. If the judgement debtor does not appear before the court after serving of the notice, if the decree-holder so requires, the court shall issue a warrant to arrest such person.

The objective of serving notice is to prevent the arrest and detention of an honest debtor who is not able to pay the debt due to some sufficient cause. The procedure of giving show cause notice is the acknowledgement of the rule of natural justice that any person shall not be condemned unheard.

Under Order XXI Rule 40, it is stated that if the person appears before the court after the issuance of the notice as given under Rule 37, the court shall hear the decree-holder for the execution of the decree and then give the chance to the judgement holder for showing as to why he should not be arrested.

Where a judgement debtor appears before the court and shows the reasonable cause for his inability to pay the decretal amount and the court is satisfied that he is unable to pay, the court may reject the application of the arrest. However, if the judgement debtor could not satisfy the court against the order passed against him for arrest and detention, the court may commit him to the civil prison, subject to the provisions of the code.

It has been held in the case of Mayadhar Bhoi v. Moti Dibya, where a money decree has not been paid by the judgement debtor within thirty days since that order was made, the court on the application by the decree-holder require the judgement debtor to give an affidavit stating the particulars of his assets, and if the person disobeys such order, he can be detained for three months.

Where an inquiry has been passed in accordance with subrule 1 of Order XXI Rule 40, the court may after the conclusion of the inquiry, subject to the provisions given in Section 51 and to the other provisions of the code, order the person to be committed to the prison and shall order for arrest of the person if he is not already arrested.

Power and duty of the court

Section 55 states that where a judgement debtor is arrested in execution of a decree for the payment of money and is presented before the court, the court shall inform him to declare himself as insolvent and he can be discharged if he has not done any act in bad faith regarding the subject of the application and if he complies with the law of insolvency which is in force at that time.

According to Order XXI Rule 39, a judgement debtor shall not be arrested for the execution of the decree unless the decree-holder deposits the amount to the court, fixed by the judge, for the subsistence of the judgement holder, from the time of the arrest until he is brought to the court. And where such person is committed to the civil prison, the court shall fix the subsistence as a monthly allowance according to Section 57, or where such scales are not fixed, the court shall fix as it considers sufficient for that class of the person.

In the case of Amulya Chandra v. Pashupati Nath, the court held that if the judgement debtor despite having means to pay the decretal amount refuses to pay, he can be detained. However, it must be checked whether such a person has means to pay and refuses to pay the amount in bad faith. These provisions were widely explained in the case of Jolly George Verghese v. Bank of Cochin, where Justice Krishna Iyer stated that a simple default is not enough, there must be an element of bad faith beyond mere indifference to paying; some deliberate refusal or the present means to pay a decree or a substantial part of it.

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Recording of reasons

Section 51 says that an order for detaining a person shall not be passed unless, after the person has been provided with an opportunity of showing cause why he should not be arrested, the court for reasons recorded in writing must be satisfied:

  • That the judgement debtor with the object of delaying the execution of the decree is likely to abscond of the jurisdiction of the court or has dishonestly transferred, concealed or removed his property, or has done any other act done in bad faith, or
  • That the judgement debtor has the means to pay the amount or a substantial part of it and refuses to pay the same, or
  • That the decretal amount has to be paid on account of the fiduciary relationship.

Period of detention

Section 58 specifies the period for which a person can be detained, which is decided according to the amount of the decree which has been passed against him by the court, and where he has failed to pay that decretal amount. It says that a person cannot be detained for more than three months if the decretal amount exceeds five thousand rupees and, for an amount between two thousand to five thousand rupees, such detention cannot exceed six weeks. If the amount does not exceed two thousand rupees, no order for detention of the judgement debtor can be made. 

Release of judgment-debtor

Under Section 58, every person who has been detained in civil prison shall be released before the said period of detention on the following grounds:

  • Where the decree against him has been fully satisfied,
  • Where the amount mentioned in the warrant for his detention has been paid to the police officer,
  • Where the person on whose application the person was detained requests so, or
  • Where the person on whose application such detention was made omits to pay subsistence allowance.

Section 59 provides that a warrant issued by a court for the arrest of the person can be cancelled anytime if there is some serious illness to the judgement-debtor. And if such arrest has already been made, and it appears to the court that the person is not in a fit state of health to be in prison, may order for his release.

Where the judgement debtor has been committed to prison, he may be released:

  • By the State Government, if there exists some infectious or contagious disease, or
  • By the court which granted the execution;
  • Or any court which is superior to the above court, on the grounds of serious illness.

This provision shall be applied liberally since it is a beneficial provision. 

Also when a person is released after the completion of the period of the arrest given under Section 58, the person is not discharged from his duty to pay the decretal amount to the decree-holder.

Where a person intends to apply to be declared as an insolvent in accordance with Section 55, and furnishes security to the satisfaction of the court, that he will apply for being insolvent within one month and that he will appear when called for the proceedings related to the insolvency application or for the execution of the decree of which he was arrested, the court can release him for such period and if he fails to apply for the application and to appear, the court can direct the security to be realized that was given by him or commit him to prison.

Where an inquiry is pending under subrule 1 of Order XXI Rule 40, the court can order the release of the judgement debtor, upon its discretion if the judgement debtor furnishes the security to the satisfaction of the court for his appearance before the court. 

Also, the court in order to give the opportunity of satisfying a decree to the judgement debtor, before ordering the detention of the person, under subrule 3 of Order XXI Rule 40, can provide fifteen days to the judgement debtor for satisfying the decree, by leaving the person in custody of the police officer or may release him on furnishing security to the satisfaction of the court, on the condition that the person will appear after the expiration of the specified period if the decree is not satisfied before the end of the period.

Where the court does not make an order of detention under subrule 3 of Order XXI Rule 40, it can refuse the application and if the judgement debtor is already under arrest, order for his release.

Re-arrest of judgment-debtor

Any person that has been released on grounds of serious illness in accordance with Section 59 can be arrested again but the period of detention in aggregate should not be more than that prescribed by Section 58.

Any person whose period of arrest has been completed as given under Section 58 cannot be arrested again under the decree in execution of which he was detained in the civil prison.

Any person that has been released in accordance with Order XXI Rule 40 can be re-arrested.

Conclusion

The purpose of arrest and detention is to give relief to a decree-holder and commit the judgement debtor to the civil prison if he does not pay the decretal amount despite having means to pay the same. However, it also protects honest debtors, where his inability to pay is supported by a reasonable cause. The court has to afford the right to be heard to the debtors in order to ensure proper justice.

References


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