ARREST AND DETENTION (SECTION 55-59, ORDER 21, RULES 37-40)

Introduction
• One of the various modes of execution provided in S. 51 is by arrest and detention of the
judgement debtor in the civil prison. Rules relating to arrest and detention of judgement debtor
are to be found in S. 55-59 and R. 37-40 of O.21.
• Object - The object of this section is to prevent vexatious forms of resistance to execution
proceedings.
Procedure
• S. 55(1) - A judgement debtor may be arrested at any time and on any day in execution of a
decree. After his arrest, he must be brought before the court as soon as practicable.
i. While arresting, no dwelling house may be entered after sunset or before sunrise.
Furthermore, no outer door of a dwelling house may be broken open unless such
dwelling house is in the occupancy of the judgement debtor and he refuses or prevents
access thereto.

Case Law :- Empress v. Amarnath

Held :- The officer arresting must have the warrant of arrest in his possession at the time of
making the apprehension.

ii. The officer arresting may break open the door of any room in which he has a reason
to believe that the judgement debtor may be found. But, where the room is in the
actual occupancy of a pardanashin woman who is not the judgement debtor, then
reasonable time and facility shall be given to her to withdraw from there.
iii. If the judgement debtor pays the decretal amount and costs of arrest to the officer, he
should be released at once.
• S. 55(2) - The state govt. may declare that any person whose arrest might cause danger or
inconvenience to the public shall be liable to arrested only in such manner which may
prescribed by state govt. specifically in this behalf.
• S. 55(3) - A court executing a money decree is bound to inform the judgement debtor when
he is arrested that he may apply to be declares an insolvent. He is also to be informed that he
may be discharged is he has not committed any act of bad faith regarding the subject of the
application and if he complies with the provisions of the law of insolvency.
• S. 55 (4) - If the judgement debtor expresses his intention to apply to be declared as an
insolvent and furnishes security to the satisfaction of the court, that he will within one month
so apply, and that he will appear, when called upon, in the insolvency court or the executing
court, he may be released from arrest.
• However, if he fails to so apply and does not appear when called upon, then the court may
either direct the security to be realised or commit him to the civil prison in execution of the
decree. This is an alternative and not concurrent remedy. Therefore, the court cannot proceed
against the surety and the judgement debtor at the same time.

Conclusion

• These provisions protects and safeguards the interest of the decree holder. The arrest is not
to be made in the usual course of business but only when the judgement debtor has the
means and still refuses or neglects to honour his obligations under the decree.

Case Law :- Jolly George Varghese v. Bank of Cochin

Held :- Simple default to discharge is not enough or mere omission to pay is not enough. There
must be some element of bad faith beyond mere difference to pay.

NOTICE: O. 21 RULES 37-40 & 41

• Show cause against detention (R. 37) - This rule states that :-
 i. If a money decree has been passed and an application is made for the arrest and
detention of the judgement debtor, then the court shall issue a notice to the judgement
debtor to show cause as to why he should not be committed to civil prison in execution
of the decree.
a) The purpose of the notice is to afford protection to honest debtors incapable
of paying dues for reasons beyond their control. It also recognizes a rule of
natural justice that no person shall be condemned unheard.
b) However, if the curt is satisfied that the judgement-debtor is likely to abscond
or leave the local limits of the jurisdiction of the court with object of delaying
the execution of the decree, then no such notice is necessary.
ii. S. 37 (2) - If the judgement-debtor does not appear in obedience to the notice, then
the court shall on the request of the decree holder issue a warrant of arrest of the
judgement-debtor.
• Judgement-debtor to be brought up (R. 38) - The warrant of arrest of a judgement-debtor
shall direct the officer responsible for execution to bring him before the court.
• Subsistence allowance (R. 39) - This rule states that :-
i. A judgement-debtor is not to be arrested in execution of a decree unless the decree
holder has paid to the court a subsistence allowance fixed by the court.
ii. The court shall fix the amount of subsistence allowance in accordance with the scales
fixed u/s 57 or where no such scales have been fixed, such amount as it considers
sufficient with reference to the class to which he belongs.
iii. The monthly allowance is to be supplied by way of monthly payments in advance, that
is, before the first day of each month.
iv. The first payment is to be made to the proper officer of the court and the subsequent
payments are to be made to the officer in charge of the civil prison.
v. Sums paid as subsistence allowance shall be deemed to be the costs in the suit.
• Proceedings on appearance of judgement debtor in obedience to notice or after arrest
(R. 40) - This rule states that :-
i. Sub-rule 1 - After a judgement debtor appears before the court in accordance with the
notice issued under R. 37 or when he is brought to the court after being arrested in
execution of a decree for the payment of money, the court shall hear the decree holder
and take all evidence which may be produced by him in support of his application for
execution. Thereafter, the court shall give an opportunity to the judgement debtor to
show cause as to why he should not be committed to civil prison.
ii. Sub-rule 2 - Until the conclusion of the above inquiry, the court may order the
judgement debtor to be detained in the custody of an officer of the court or it may
release him on him furnishing security to the satisfaction of the court for his
appearance when required.
iii. Sub-rule 3 - After the conclusion of the inquiry, the court may make an order for the
detention of the judgement debtor in the civil prison, the same being subject to the
provisions of section 51 and other provisions of the code, and shall in that even cause
him to be arrested if he is not already under arrest.
However, the proviso to sub-rule provides an opportunity to the judgement debtor of
satisfying the decree. It provides that the court may before making an order of
detention leave the judgement debtor in the custody of an officer of the court for a
specified period not exceeding 15 days or release him on his furnishing security to the
satisfaction of the court for his appearance at the expiration of the specified period if
the decree be no sooner satisfied.
iv. Sub-rule 4 - A judgement-debtor released under this rule may be re-arrested.
v. Sub-rule 5 - If the court does not make order of detention under sub rule 3, then it
shall disallow the application and, if the judgement debtor is under arrest, direct his
release.
• Examination of property of judgement-debtor (R. 41) - If the money decree has
remained unsatisfied for a period thirty days, then the court may on the application of the
 decree holder, require the judgement-debtor to furnish an affidavit stating the particulars of his
assets. The person who disobeys this order may be detained up to three months.

PROHIBITION OF ARREST OF DETENTION OF WOMEN IN EXECUTION OF

DECREE FOR MONEY (SECTION 56)

• A woman under section 55 or otherwise cannot be arrested or detained under civil prison in
execution of a decree for the payment of money.

SUBSISTENCE ALLOWANCE (SECTION 57)

• A judgement debtor shall not be arrested in execution of a decree unless and until the decree-
holder pays into court such sum which the judge thinks is sufficient for the subsistence of the
judgement debtor.
• Subsistence allowance is to be paid either by the decree holder or by the person executing the
decree. It is to be paid monthly.
• S. 57 - The determination or fixation of such an allowance will be made by the state govt.
keeping in view the rank, race and nationality of the judgement debtor.

DETENTION AND RELEASE (SECTION 58)

• Period of detention - of the judgement debtor in civil prison shall be :-

i. Three months, if the decretal amount exceeds Rs. 5000 and
ii. Six weeks, if the decretal amount exceeds Rs. 2000 but does not exceed Rs. 5000.
iii. If the decretal amount does not exceed Rs. 2000, no detention can be ordered.

The power vested in the court is a discretionary one so that it could fix even a shorter period than that prescribed
in the section.

• Release of judgement debtor - shall be released before the expiration of the period of detention :-
i. On the amount mentioned in the warrant being paid or
ii. On the decree against him being otherwise fully satisfied or
iii. On the request of the decree holder or
iv. On the omission by the decree-holder to pay subsistence allowance.
v. On the ground of illness (Section 59)
• No discharge - Section 58 (2) states that a release under section 58 does not discharge the judgement
debtor from his debt, but then he cannot be re-arrested on the same ground.

RELEASE ON GROUND OF ILLNESS (SECTION 59)

• The provisions of section 59 are self-contained and are based purely on humanitarian grounds. It states
that :-
i. S. 58(1) - The court may at any time cancel a warrant of arrest issued against the judgement
debtor on the grounds of his serious illness.
ii. S. 58(2) - It may also release him where he has been arrested and is not in a fit state of health
to be detained in the civil prison.
iii. S. 58(3) - If the judgement debtor has been committed to a civil prison, he may be released
from there :-
a) By the state govt., if he is suffering from any infectious or contagious disease or
b) By the court, if he is suffering from any serious illness.
• S. 58(4) - The judgement debtor released under this section may be rearrested but then the period of
detention in civil prison shall not in aggregate exceed the maximum period prescribed by section 58.

Case Law :- M. Sadiq v. Lala Chunni lal

Held :- If the judgement debtor is suffering from any serious illness, the court or state should release him so
that it can escape from the moral responsibility if anything happens to him.