ARREST AND DETENTION

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:
1- Under Rule 30, a decree for the payment of money
can be executed by the arrest and detention of the
judgement debtor.
2- 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.
3- 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.
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:
1- Where the decree against him has been fully
satisfied,
2- Where the amount mentioned in the warrant for
his detention has been paid to the police officer,
3- Where the person on whose application the
person was detained requests so, or
4- 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.
1- Where the judgement debtor has been committed
to prison, he may be released:
2- By the State Government, if there exists some
infectious or contagious disease, or
3- 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.
 TABLE OF CONTENT
1- Introduction
2- Nature and scope
3- When arrest and detention may be ordered?
4- Who cannot be arrested?
5- Procedure to be followed
6- Notice
7- Power and duty of the court
8- Recording of reasons
9- Period of detention
10- Release of judgment-debtor
11- Re-arrest of judgment-debtor
12- Conclusion