Arrest and Detention in Execution

In one line

A judgment-debtor may be arrested and held in the civil prison, but the Code protects when the arrest may be made, whose door may be opened, who may not be arrested at all, and how long the detention may last.

Why the Code hedges it so heavily

Detention in execution is not punishment. The judgment-debtor has committed no offence. He is being held to make him pay, and that is only defensible where he actually can pay and will not. Everything in this chapter follows from that.

Notice the structure. The conditions for ordering detention are in the proviso to section 51 and are strict. The manner of arrest is in section 55 and is hedged with three provisos. Who is exempt is sections 56 and 135. The duration is section 58, and it is short. And section 58(2) makes clear that release does not wipe out the debt, so detention is a lever, not a settlement.

How the arrest is made: section 55

Section 55(1): a judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall as soon as practicable be brought before the Court, and his detention may be in the civil prison of the district in which the Court ordering detention is situate, or, where that prison does not afford suitable accommodation, in any other place the State Government appoints.

Then come three provisos, and they are a favourite of examiners because they are concrete.

First proviso: for the purpose of making an arrest, no dwelling-house shall be entered after sunset and before sunrise.

Second proviso: no outer door of a dwelling-house shall be broken open unless the dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access to it. But where the officer has duly gained access, he may break open the door of any inner room in which he has reason to believe the judgment-debtor is to be found.

Third proviso: if a room is in the actual occupancy of a woman who is not the judgment-debtor and who according to the customs of the country does not appear in public, the officer shall give notice to her that she is at liberty to withdraw, and, after allowing reasonable time and facility for her to withdraw, may enter that room for the purpose of making the arrest.

Section 55(3) provides that where the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, that officer shall at once release him.

Section 55(4) allows the Court to release a judgment-debtor who is arrested in execution of a decree for the payment of money, on his furnishing security or on such terms as the Court thinks fit, where he applies to be declared an insolvent.