Arrest and Detention in Execution

Who may not be arrested

Section 56: notwithstanding anything in this Part, the Court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.

That is absolute for a money decree, and it is a two-mark answer on its own.

Section 135 protects certain persons from arrest under civil process: Judges, Magistrates and other judicial officers, and the parties, their pleaders and witnesses, while going to, remaining at, or returning from the Court. Section 135A protects members of legislatures during a session and for the periods the section specifies.

Order XXI Rule 40 adds a further protection at the hearing stage: where the judgment-debtor appears in obedience to a notice to show cause, or is brought before the Court after arrest, the Court shall hear the decree-holder and take all evidence, and shall then either make an order for his detention, or, if satisfied that he is unable to pay, reject the application, and the Court may in an appropriate case release him pending the conclusion of the inquiry.

How long: section 58

Section 58(1): every person detained in the civil prison in execution of a decree shall be so detained:

(a) where the decree is for the payment of a sum of money exceeding five thousand rupees, for a period not exceeding three months; and (b) where the decree is for the payment of a sum exceeding two thousand rupees but not exceeding five thousand rupees, for a period not exceeding six weeks.

Section 58(1A): for the removal of doubts it is declared that no order for detention shall be made where the total amount of the decree does not exceed two thousand rupees.

So there are three bands, and the smallest carries no detention at all. Learn the figures: over Rs. 5,000, three months; over Rs. 2,000 up to Rs. 5,000, six weeks; up to Rs. 2,000, none.

The first proviso to section 58(1) requires release before the expiry of the period in four cases:

(i) on the amount mentioned in the warrant being paid to the officer in charge of the civil prison (ii) on the decree being otherwise fully satisfied (iii) on the request of the person on whose application he was detained (iv) on the omission by that person to pay subsistence allowance

The second proviso adds that release under clause (ii) or clause (iii) requires an order of the Court.

Section 58(2), and this is the rule that decides most exam problems: a judgment-debtor released from detention shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained.

So detention is spent once. The debt survives, and the decree-holder may still attach and sell property; but that judgment-debtor cannot be imprisoned again on that decree.

Section 57 empowers the State Government to fix scales of monthly allowances payable for the subsistence of judgment-debtors, and section 59 provides for release on the ground of serious illness.

The procedure before arrest: Order XXI Rules 37 to 40

Rule 11A requires an application for arrest to state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for.

Rule 37(1): notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention of the judgment-debtor, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear and show cause why he should not be committed to the civil prison.

The proviso to Rule 37(1) allows the Court to issue a warrant at once, instead of a notice, if it is satisfied by affidavit or otherwise that the judgment-debtor is likely to abscond or leave the local limits of its jurisdiction with the object of delaying execution.

Rule 37(2): where the judgment-debtor fails to appear in obedience to the notice, the Court may issue a warrant for his arrest.

Rule 38 provides that every warrant shall direct the officer to bring the judgment-debtor before the Court with all convenient speed, unless the decretal amount and costs are paid.

Rule 39 requires subsistence allowance to be deposited: no judgment-debtor shall be arrested unless the decree-holder pays into court such sum as the Judge thinks sufficient for his subsistence from his arrest until he can be brought before the Court, and thereafter monthly. Sums so disbursed are added to the costs of the decree, but the judgment-debtor is not detained for failure to pay them.

So the sequence is: notice first as the rule, warrant only where he is likely to abscond, subsistence money deposited before arrest, and an inquiry under Rule 40 before any order of detention.

A worked example

Esha holds a decree for Rs. 60,000 against Farhan and applies for his arrest.

What happens first? Order XXI Rule 37(1): the Court issues a notice to show cause, not a warrant, unless satisfied that he is likely to abscond, in which case the proviso allows a warrant at once. Her application must state the grounds for arrest under Rule 11A.

Before he is arrested, Esha must deposit subsistence allowance under Rule 39.

At the hearing the Court hears her, takes evidence, and under Rule 40 either orders detention or, if satisfied Farhan is unable to pay, rejects the application. It may order detention only on the section 51 proviso grounds, for reasons recorded.

The arrest itself. Section 55: any hour, any day, but no dwelling-house entered between sunset and sunrise; his outer door broken only if he occupies the house and refuses access; and where an inner room is occupied by a woman who does not appear in public, notice and a reasonable opportunity to withdraw first.

Farhan pays the decree and the costs of arrest to the arresting officer. Section 55(3): the officer shall at once release him.

He does not pay and is detained. The decree exceeds Rs. 5,000, so under section 58(1)(a) detention may not exceed three months.

Esha stops paying subsistence allowance. Clause (iv) of the first proviso to section 58(1): he must be released.

He is released after three months without paying. Section 58(2): he is not discharged from the debt, so Esha may still attach and sell his property, but he cannot be re-arrested under that decree.

Change the judgment-debtor. Suppose the decree were against Farhan's wife instead. Section 56: the Court shall not order the arrest or detention of a woman in execution of a decree for the payment of money.

Change the sum. Suppose the decree were for Rs. 1,800. Section 58(1A): no order for detention may be made at all.

What it does not mean

Arrest is not the first step. Order XXI Rule 37 requires a notice to show cause, unless the judgment-debtor is likely to abscond.

Detention is not punishment. It is a means of enforcing payment, which is why inability to pay defeats it under Rule 40.

A dwelling-house is not open at any hour. The first proviso to section 55 forbids entry between sunset and sunrise.

Release does not discharge the debt. Section 58(2). But it does bar re-arrest on the same decree.

A woman cannot be detained for a money decree at all. Section 56.

Arrest that is not in execution: sections 134 and 136

Section 134: the provisions of sections 55, 57 and 59 apply, so far as may be, to all persons arrested under this Code. So the manner of arrest, the subsistence allowance and release on illness reach an arrest before judgment under Order XXXVIII as well as one in execution.

Section 136: where an application is made for a person to be arrested, or property to be attached, under a provision not relating to the execution of decrees, and that person resides or that property is situated outside the local limits of the Court's jurisdiction, the Court may send the order to a District Court within whose limits he resides or it is situated, and that Court then proceeds as if the application had been made to it. This is the machinery behind an attachment before judgment reaching property in another district. See [Attachment before Judgment].

Quick revision## Quick revision

Section 55: arrest at any hour on any day, brought before the Court as soon as practicable. No dwelling-house entered between sunset and sunrise; no outer door broken unless the judgment-debtor occupies it and refuses access, though inner rooms may be broken into once access is gained; a room occupied by a woman who does not appear in public requires notice and reasonable time to withdraw. Payment of the decree and costs of arrest to the officer means immediate release, section 55(3).

Section 56: no arrest or detention of a woman in execution of a money decree. Sections 135 and 135A: judicial officers, parties, pleaders and witnesses going to, at or returning from Court, and legislators during a session, are protected from arrest under civil process.

Section 58: over Rs. 5,000, up to three months; over Rs. 2,000 and up to Rs. 5,000, up to six weeks; not exceeding Rs. 2,000, no detention at all. Earlier release on payment into the prison, full satisfaction, the decree-holder's request, or failure to pay subsistence allowance; the middle two need a Court order. Section 58(2): release does not discharge the debt, but he may not be re-arrested on that decree.

Order XXI: grounds stated for arrest, Rule 11A; notice to show cause first, warrant only where he is likely to abscond, Rule 37; subsistence allowance deposited before arrest, added to costs but never a ground of detention, Rule 39; inquiry, and rejection if he is unable to pay, Rule 40.

Test yourself

1. At what times may a judgment-debtor be arrested? At any hour and on any day, under section 55(1), but the first proviso forbids entering a dwelling-house for the purpose of an arrest after sunset and before sunrise.

2. May the arresting officer break open a door? Not the outer door of a dwelling-house, unless the house is in the occupancy of the judgment-debtor and he refuses or prevents access. Once access has been duly gained, the officer may break open the door of any inner room in which he has reason to believe the judgment-debtor is to be found. Where a room is in the actual occupancy of a woman who by custom does not appear in public, he must first give her notice and a reasonable opportunity to withdraw.

3. Can a woman be arrested in execution of a decree? Not in execution of a decree for the payment of money. Section 56 provides that the Court shall not order the arrest or detention in the civil prison of a woman in execution of such a decree.

4. For how long may a judgment-debtor be detained? Where the decree is for a sum exceeding five thousand rupees, for not more than three months; where it exceeds two thousand rupees but not five thousand, for not more than six weeks; and where the total amount of the decree does not exceed two thousand rupees, no order of detention may be made at all: section 58.

5. Does release from detention discharge the debt? No. Section 58(2) provides that a judgment-debtor released from detention is not merely by reason of his release discharged from his debt, though he is not liable to be re-arrested under the decree in execution of which he was detained.

6. Is a warrant issued straight away on an application for arrest? No. Order XXI Rule 37(1) requires the Court to issue a notice calling on the judgment-debtor to show cause why he should not be committed to prison. Only where the Court is satisfied, by affidavit or otherwise, that he is likely to abscond or leave the local limits of its jurisdiction with the object of delaying execution may it issue a warrant at once.

7. Who pays for the judgment-debtor's subsistence in prison? The decree-holder, under Order XXI Rule 39, who must deposit a sufficient sum before the arrest and monthly thereafter. Those sums are added to the costs of the decree, but the judgment-debtor is not to be detained for failure to pay them, and under section 58 he must be released if the decree-holder omits to pay the allowance.