CODE OF CIVIL

PROCEDURE,1908

ARREST AND DETENTION AS A

MODE OF EXECUTION

Submitted To : Submitted By : Siddhanth Arora

Dr. Karan Jawanda Ba LLb
Section B
204/17

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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my professor Dr. Karan

Jawanda who gave me the golden opportunity to do this wonderful project on the
topic “Arrest and Detention as mode of Execution” which also helped me in doing
a lot of Research and i came to know about so many new things I am really
thankful to them.

Secondly i would also like to thank my parents and friends who helped me a lot in
finalizing this project within the limited time frame.

Siddhanth Arora


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Contents

INTRODUCTION ...........................................................................................................................4
OBJECT ........................................................................................................................................5
WHO CAN’T BE ARRESTED ........................................................................................................6
PROCEDURE FOR ARREST AND DETENTION .........................................................................7
(RULE 37-40 OF ORDER 21) .......................................................................................................7
GROUNDS OF RELEASE...........................................................................................................11
CONCLUSION ............................................................................................................................13
BIBLIOGRAPHY..........................................................................................................................14

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INTRODUCTION

The term execution has not been defined in the code. Several interpretations and
definitions are given to the word through different judgments.

Sreenath roy

v.

Radha nath mookherjee1

Execution is the enforcement of decrees and orders by the process of the court ,so
as to enable the decree holder to realize the fruits of the decree.

Halsbury’s law of England states that execution signifies the enforcement or

giving effect to the judgment or order of court of justice.

In simpler words we could say that execution is means to get the decree of the
court enforced so that decree holder could get the fruits of the decree. For the
purpose of execution of the decree, several modes are given in the code in Section
51 of the code (head section of the execution)

Section 51 includes several modes of execution:-

• By delivery of any property

• By attachment and sale or by sale without attachment of any property

• By arrest and detention in prison

• By appointing a receiver

• In such other manner as the nature of the relief granted may require.

1 ILR(1882)9Cal773

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Code enumerates several mode of execution and one of the mode is arrest and
detention which is covered from sections 55 to 59 , 74 and rules 37 to 41 of order
21 of the code .Rule 30 to 36 also contains provisions of arrest. However
provisions to the arrest and detention are given in section 51 i.e the general rule is
that there can be no arrest and detention in case of execution of money decree ,
however certain circumstances allow it and those circumstances are mentioned in
section 51 proviso.

OBJECT

Arrest and detention is the last resort for the execution of the decree because it
curtails the fundamental right of person i.e. right to life and liberty. So before
ordering the execution by this mode court has to take extreme care and caution

Subrata roy sahara

v.

Union of India2

The court stated, “Most importantly, the purpose of sending a person to jail must be
understood as being a manner, procedure or device, for the satisfaction of the
liability. Arrest and detention is only to coerce compliance. The liability to pay
would stand discharged only by actual payment of the amount due. Remaining in
jail would not discharge the liability to pay”

In other words it simply means that there is nothing like imprisonment in lieu of
payment in case of execution of the decree. Imprisonment doesn’t take away my
liability to satisfy the decree. It’s a coercive measure to make judgment debtor
respect the decree.

2( 2014)8 SCC 470

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WHO CAN’T BE ARRESTED
The following persons can’t be arrested and detained in civil prison:-
• A woman ( sec.56)

• Judicial officers, while going to, presiding in, or returning from their
courts(sec 135(1))
• The parties, their pleaders, mukhtars, revenue agents and recognized agents
and their witnesses acting in obedience to the summons, while going to or
attending or returning from the court.(sec 135(2))
• Members of legislative bodies(sec135-A)

• Any person or class of persons whose arrest according to state government

might be attended with anger or inconvenience to the public(sec 55(2))
• A judgment debtor where the decretal amount does not exceed rupees
2000(sec 58(1-A))

NO ARREST CAN BE MADE FOR EXECUTION OF MONEY DECREE

(SEC 51) EXCEPT FOR CERTAIN CIRCUMSTANCES, RECORDED IN
WRITING-

1. That the judgment debtor with the object or effect of obstructing or

delaying the execution of decree-
• Is likely to abscond or leave the local limits of the jurisdiction
of the court
• Has after the institution of the suit in which the decree was
passed dishonestly transferred, concealed, or removed any part
of his property or committed any other act of bad faith in
relation to his property.

2. That the judgment debtor has had the since the day od decree the
means to pay the amount or substantial part of decree but refuses or
neglects to pay the amount

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 3. That the decree is for the sum of which the judgment debtor was
bound in fiduciary capacity to account.

PROCEDURE FOR ARREST AND DETENTION

(RULE 37-40 OF ORDER 21)

RULE 37(1)- where an application is made for the execution of money

decree by arrest and detention of judgment debtor(subject to proviso of sec
51),the court shall issue notice rather than warrant of arrest to judgment
debtor to appear before court on the day specified and show cause why he
should not be committed to the civil prison.

However, proviso of the rule says that notice shall not be necessary, on
affi9davit or otherwise that by notice, judgment debtor with the object or
effect of delaying execution of decree, is likely to abscond or leave the local
limits of jurisdiction of the court.

Now two situations can arise i.e.

• Judgment debtor will not appear before court

• Judgment debtor will appear before court

In first situation, as appearance is not made in obedience to the order of the court
shall, if decree holder requires, issue a warrant for the arrest of the judgment
debtor. (Rule 37 (2))

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RULE 38- Rule mentions that every warrant for arrest of judgment debtor shall
direst the officer entrusted with execution to bring him before court with all
convenient speed (unlike criminal law, 24 hours to make person appear before
magistrate is not a rule here because no investigation within 24 hours is required in
civil cases) unless decree amount is paid along with interest and costs to which he
is liable sooner i.e before arrest to the officer.

Chance is given to judgment debtor at every stage to pay the amount so that he
isn’t arrested in order to protect his right to life and personal liberty.

RULE 39 mentions about subsistence allowance which in simple words mean that
all the expenditure of judgment debtor right from time of arrest till his release his is
to be borne by decree holder and this amount (as fixed) is given in advance,
otherwise any default on the part of decree holder in payment shall result in release
of judgment debtor from the civil prison.

Rule 39(1) says that judgment debtor shall not be arrested until and unless decree
holder doesn’t pay the sum in the court as judge thinks sufficient for subsistence of
judgment debtor from time of arrest till he is brought before the court

Rule 39(2)-mentions that incase judgment debtor is committed in civil prison, the
court shall fix monthly allowance for his subsistence accordingly if scales are fixed
by state government under section 57(as jail is a state matter) and if no such scale
is fixed, then in reference to the class of judgment debtor.

Rule 39(3)-says that such monthly allowance has to be paid by decree holder in
advance before the first day of each month however if the arrest is made from a
day in between the month, then first payment shall be made to proper officer of the
court for such portion of the month before judgment debtor is committed in the
civil prison and subsequent payments shall be made to the officer in charge of the
civil prison as per rule 38(4)

Sums paid by decree holder for the subsistence of judgment debtor shall be deemed
to be costs of the suit according to rule 39(5) however as per the proviso no arrest
of the person can be made in case of default of payment of such amount of decree
holder

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RULE 40 mentions the principle of natural justice. When judgment debtor comes
by himself to the court on receiving the notice or is brought before the court by
arrest for execution of money decree, court shall hear both the parties i.e. firstly
decree holder and then judgment debtor as to show cause why he should not be
committed to the prison.

Incase inquiry is still pending, court has two options i.e.

• Order judgment debtor to be detained in the custody of officer of the court
(or)
• Release judgment debtor after furnishing his security to the satisfaction that
he shall appear before court when required.(rule 40(2))

Upon conclusion of the inquiry, if court doesn’t make an order of detention, court
shall disallow the application and incase judgment t debtor is already under arrest,
shall release him as per rule 40(5) however if order is made for the detention of the
judgment debtor, court shall cause him to be arrested in case he is not already
under arrest (custody of officer of the court)(rule 40(3))

However proviso says that court still gives a chance to the judgment debtor before
making order of detention by ordering detention of judgment debtor for not more
than 15 days in custody of officer of court or is released after making security so
that he satisfies the decree as sooner possible.

Hence, chance is given to the judgment debtor again and again so that he pays
before the arrest because arrest and detention is an extreme step and is the last
resort as a mode for the execution of the decree.

Section 55 to 59 lays the rules regarding arrest and detention.

Rule 55 mentions that a judgment debtor maybe arrested at any time (subject to the
proviso that says no arrest of person can be made after sunset and before sunrise in
dwelling house) and any day and his detention maybe in the civil prison of the
district, however if civil prison doesn’t afford suitable accommodation, then the
place which state government appoint for detention after the order of the court of
such district.

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Second proviso says that no outer door of dwelling house shall be broken open
until and unless such dwelling house is in the occupancy of the judgment debtor
and he refuses or prevents the access. However, once such access is gained to
dwelling house, he may break open any door of the house in which he has reason
to believe that judgment debtor is found.

Third proviso says that if in case room is in occupancy of the woman(she isn’t
judgment debtor) and is pardanashi woman, officer shall give notice to her to
withdraw herself and after giving reasonable time and facility to withdraw, may
enter the room to arrest the judgment debtor.

Fourth proviso mentions that if arrest is made for the execution of money decree
however judgment debtor pays the amount of decree and costs of arrest to the
officer arresting him, he shall not be arrested then.

Where the person is bought before the court after arrest and on inquiry he says that
he has no money to pay the amount, court may ask him to declare himself
insolvent if he hasn’t committed act of bad faith and complies with provisions of
insolvency. Main principle behind this concept is that poverty is no reason to take
away the liberty of the person. If judgment debtor expresses intention to apply to
be declared as insolvent and furnish security to the satisfaction of the court that he
will within 1 month so apply and that he will appear before the court when
required .In such a case court may release him from arrest and if he fails to appear
when required, court may commit him to civil prison or either direct security to be
realized.(SEC- 55(4))

Mere omission to pay cannot result in arrest and detention. Before ordering the
detention, court must be satisfied that there was an element of malafide and bad
faith.

Jolly George Varghese

v.

Bank of Cochin3

3 (1980)2 SCC 360

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Justice Krishna Iyer said, “The provision emphasis the need to establish not mere
omission to pay but an attitude of refusal on demand verging on dishonest
disowning of the obligation under the decree.”

SECTION 56 Mentions that woman can’t be arrested for execution of a money

decree.

State government may fix scales for subsistence allowance of judgment debtor
according to his rank, race and nationality as per section 57.

SECTION 59-This section lays down the time period for which the person could
be detained in the civil prison. i.e.-
• Where decree is for the payment of money more than rupees 5000, period of
detention shall not exceed 3 months.
• Where decree is for the payment of money between rupees 2000 to 5000,
period of detention shall not exceed six weeks.
• No arrest can be made for payment of less than rupees 2000(section58(1-
A))

GROUNDS OF RELEASE
Ground of release from arrest and detention are given in section 58 proviso and
59.

Section 58 proviso- judgment debtor shall not be released from detention before
expiration of 3 months or 6 weeks as mentioned earlier except for following
circumstances-
• Amount being mentioned in the warrant for his detention being paid to the
officer in charge of the civil prison.
• On decree against him being otherwise fully satisfied (out of the court
satisfaction of the decree ,example by relatives)

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 • On request of person on whose application arrest and detention was made
(i.e. decree holder)
• On omission by the decree holder to pay the subsistence allowance

Section 59 mentions the ground of illness for the release of judgment debtor.
• At any time after the issuance of warrant for arrest ,court may cancel the
warrant on basis of serious illness of the judgment debtor.(sec 59(1))
• If the judgment debtor has been arrested, court may release him ,if it thinks
fit that he is not in a fit state to be detained in the civil prison.(sec 59(2))
• If the judgment debtor has been detained in civil prison ,he can be released
then-

1. By state government on ground of existence of some infectious(by

air)or contagious(by touch) disease ,or

2. By committing court or other court to which committing court is

subordinate to release him on ground of serious illness.(sec59(3))

A judgment debtor who is released on such ground can be re-arrested but the
period of detention shall not exceed the period mentioned in section 58 i.e. 3
months or 6 weeks at maximum.

Arrest can be made for the execution of money decree (rule 30 subject to section
51) and also for specific movable property(rule 31)provision of arrest also comes
in scene in case of decree for specific performance of restitution of conjugal rights
or for an injunction(rule 32).

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CONCLUSION
Arrest and detention is a mode of execution which is actually the last resort to
execute the decree .However, arrest and detention doesn’t end the liability of
judgment debtor to pay the amount of the decree. There is no concept of
imprisonment in lieu of payment of decree .Arrest is just a coercive measure to pay
the amount so that pressure can be put upon the defaulting judgment debtor.
Detention can’t be for more than 3 months in case of amount more than rupees
5000 and 6 weeks in case of rupees 2000 to 5000.there can be no arrest for amount
below rupees 2000.However this whole concept of arrest and detention for money
decree is subject to the provisions of section 51 which lays the general rule that
there can be no arrest in case of execution of money decree ,however this rule is
subject to certain exceptions mentioned in section 51.At almost every
step ,opportunity is given to the judgment debtor to pay the amount of the decree.
Subsistence allowance is to be given be decree holder, on whose default judgment
debtor can even be released from the civil prison before the expiration of the said
period .However the amount paid be decree holder is recoverable as costs of the
suit .Once a person is arrested and detained for the execution of the decree, it can’t
be done for more than once.

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BIBLIOGRAPHY

1. Takwani ,C.K, Civil Procedure with Limitation Act, EBC Publishing (P)
Ltd. , Lucknow ,Eighth edition, 2018

2. Manohar V.R and Chitaley W.W, The AIR Manual, All India Reporter
Limited ,Nagpur, fifth edition,1989

3. Bare act ,Code of Civil Procedure,1908

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