Introduction
To decide the rights and liabilities in a matter at hand, a decree is passed by the court under the Code of Civil Procedure (herein referred to as CPC). The person in whose favour a decree is passed is known as decree-holder and the person against whom the decree is passed is known as a judgement debtor. One such way to pass a decree under CPC is ‘arrest and detention’. The laws relating to arrest and detention under the CPC have been covered under Section 51 to 59 and Rules 30 to 40 of Order XXI.
Nature and Scope
This provision seeks to provide a remedy to a decree-holder when a lawsuit is passed in favour of him and the judgement debtor has not acted according to the decision. Such a remedy, against the judgement debtor, can be in the form of arrest and detention.
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:
- Women, as per Section 56,
- Judicial officers, as per Section 135(1),
- Where a matter is pending, their pleaders, mukhtars, revenue-agents, and witnesses acting in obedience to a summons, under Section 135(2),
- Members of legislatures, as per Section 135A,
- 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
- Where the decretal amount is less than two thousand rupees, under section 58(1A).
Power and duty of Court
Section 55 states that where a judgement debtor is arrested in execution of a decree for the payment of cash 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 quantity to the court, fixed by the judge, for the subsistence of the judgement holder, from the time of the arrest until he’s delivered to the court. And where such person is committed to the civil prison, the court shall fix the subsistence as a monthly allowance consistent with Section 57, or where such scales are not fixed, the court shall fix because 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 is often 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 an easy default isn’t enough, there must be a component 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.
Period of Detention
Section 58 specifies the time that an individual is often detained for, which is set consistent with the amount of the decree which has been passed against him by the court, and where he did not pay that decretal amount. It says that an individual can’t be detained for not 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 of money doesn’t exceed two thousand rupees, no order for detention of the judgement debtor is often made.
Release of judgment-debtor
Under Section 58, the person who has been detained in civil prison shall be released before the said period of detention on the subsequent grounds:
- Where the decree against him has been fully satisfied,
- Where the amount of money mentioned within the warrant for his detention has been paid to the policeman,
- 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 is often cancelled anytime if there’s some serious illness to the judgement-debtor. And if such arrest has already been made, and it appears to the court that the person isn’t during a fit state of health to be in prison, may order for his release.
Where the judgement debtor has been committed to prison, he could also be released:
- By the government, if there exists some infectious or contagion, or
- By the court which granted the execution;
- Or any court which is superior to the above court, on the grounds of great illness.
This provision shall be applied liberally since it’s a beneficial provision.
Also when an individual is released after the completion of the amount of the arrest given under Section 58, the person isn’t discharged from his duty to pay the decretal amount to the decree-holder.
Where an individual intends to use to be declared as an insolvent under Section 55 and furnishes security to the satisfaction of the court, that he will apply for being insolvent within one month which he will appear when involved the proceedings associated with 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 use for the appliance and to seem, the court can direct the safety 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 discharge of the judgement debtor, upon its discretion if the judgement debtor furnishes the safety to the satisfaction of the court for his appearance before the court.
Also, the court to offer the chance 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 policeman 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 required period if the decree isn’t satisfied before the top of the amount.
Where the court doesn’t make an order of detention under subrule 3 of Order XXI Rule 40, it can refuse the appliance, 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 great illness under Section 59 is often arrested again but the amount of detention in aggregate shouldn’t be quite that prescribed by Section 58.
Any person whose period of arrest has been completed as given under Section 58 can’t be arrested again under the decree in execution of which he was detained within the civil prison.
Any person that has been released under Order XXI Rule 40 is often re-arrested.
This blog is written by Amrit Rathi, Jindal Global Law School
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