Procedure of arrest and detention for the execution of Decree under CPC

ARREST AND DETENTION

The code elaborates many ways to execute the decree of decree holder.  One of these ways is “Arrest and detention” of Judgement debtor. The code gives right to choose any option for the execution of decree and except in special circumstances, court cannot compel decree holder to invoke a particular mode of execution.

Section 55 to 59 and Rules 30 to 41 of Order 21 of CPC deal with arrest and detention of the judgment debtor in civil prison.

WHEN ARREST AND DETENTION MAY BE ORDERED OF JUDGMENT DEBOTOR BY THE COURT?

In following circumstances, court may order arrest and detention-

• Decree for payment of money- (Rule 30)— Where decree for the payment of money, it may have executed by the detention in the civil person of the judgment debtor.

• Decree for specific movable property-(Rule 31)—Where the decree is for specific movable property, it may be executed by the detention in the civil prison of the judgment debtor.  

• Decree for specific performance- (Rule 32)- Where the party against whom a decree for the specific performance of a contract, disobeyed willfully the decree, it can be enforced by his detention in the civil prison.

• Decree against corporation- (Rule 32(2)) — Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers.

• Where a money decree has remained unsatisfied for a period of thirty days, the court may, on the application of the decree­holder, require the judgment­debtor to make an affidavit stating the particulars of his assets. The person disobeying the order may be detained up to three months. (Rule 41)

WHO CAN NOT BE ARRESTED AND DETAINED FOR THE EXECUTION OF DECREE?

The following persons cannot be arrested and detained in civil prison-

• 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. (Section 56)

• No Judge, Magistrate or other judicial officer shall be liable to arrest under civil process while going to, presiding in, or returning from, his Court. (Section 135(1))

• Where any matter is pending before a tribunal having jurisdiction therein, or believing in good faith that it has such jurisdiction, the parties thereto, their pleaders, mukhtars, revenue-agents and recognized agents, and their witnesses acting in obedience to a summons, shall be exempt from arrest under civil process other than process issued by such tribunal for contempt of Court. (Rule 135(2))

• Member of legislative bodies during the continuance of parliament meeting. (Rule 135-A)

• Any person or class of persons, whose arrest, according to the State Government, might be attended with danger or inconvenience to the public; (Section 55(2))

PROCEDURE FOR ARREST AND DETENTION (Section 55)

Following rules shall be followed for arrest and detention of judgment debtor-

• A judgment debtor may be arrested at any hour and on any day, and shall, as soon as practicable be brought before the court.

• After arrest, s/he shall be kept in civil prison of that district where the court situate which ordered detention and if such prison does not afford suitable accommodation, s/he shall be kept in any other place which the state government appointed for the detention of persons ordered by such court.

• For arrest, no dwelling house shall be entered after sunset and before sunrise.

• No outer door of a dwelling house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access.

• If the room is in the actual occupancy of a pardanashin woman who is not the judgment-debtor, the officer authorized to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest.

• Where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for. (Rule 11-A)

RELAESE AFTER DETENTION

Where judgment debtor arrested for the decree of payment of money and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him. (Proviso to Section 55(1))

At any time after a warrant for the arrest of a judgment-debtor has been issued the Court may cancel it on the ground of his serious illness. Where a judgment-debtor has been arrested, the Court may release him if, in its opinion, he is not in a fit state of health to be detained in the civil prison. (Section 59)

RE-ARREST OF JUDGMENT DEBTOR

once arrested a judgment debtor once released, cannot be rearrested in execution of the same decree. (Section 58(2))

Also, Release of the judgment debtor on the ground of illness does not debar his rearrest. The total period of actual detention, however, cannot exceed the maximum prescribed in the Code.  (Malli K. Dhanalakshmi v. Malli Krishnamurthi, AIR 1951 Mad 756)

DECLARATION OF JUGEMENT DEBTOR AS AN INSLOVENT

Where a person is arrested in execution of a decree for the payment of money and brought before the Court, the Court shall inform him that he may apply to be declared an insolvent, and that he may be discharged if 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.

Where a judgment-debtor expresses his intention to apply to be declared 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 any proceeding upon the application or upon the decree in execution of which he was arrested, the Court may release him from arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realized or commit him to the civil prison in execution of the decree.

RECORDING OF REASONS

The court is required to record reasons for its satisfaction for detention of the judgment­debtor. Recording of reasons is mandatory. Omission to record reasons by the court for its satisfaction amounts to ignoring a material and mandatory requirement of law. (P.G. Ranganatha v. Mayavaram Financial Corpn., AIR 1974 Mad 1)

PERIOD FOR DETENTION (RULE 58)

NOTICE INSTEAD OF WARRANT: ORDER 21 RULES 37

Section 37 give discretionary power to court to issue notice instead of warrant for arrest. Where the decree is for payment of money and the application is made for arrest and detention of the judgment debtor, the court shall, instead of issuing a warrant for arrest, issue a notice calling upon the judgment debtor to appear and show cause why he should not be committed to civil prison in execution of the decree.

The court can issue warrant in following circumstances-

1. Court is satisfied that with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court; or
2. Where appearance is not made in obedience to the notice.

OBEIDEINCE OF NOTICE (Rule 40)

Where the judgment­debtor appears before the court in obedience to such notice, and if the court is satisfied that he is unable to pay the decretal amount, the court may reject the application for arrest.

On the other hand, where the judgment­debtor appears but fails to show cause to the satisfaction of the court against the arrest and detention, the court may, subject to the provisions of the Code, make an order of detention.

CONCLUSION: PRINCIPLES FOR THE DETERMINATION OF ARREST AND DENTENTION OF JUDGEMNT DEBTOR

Before ordering detention, the court must be satisfied that there was an element of mala fide or bad faith, “not mere omission to pay but an attitude of refusal on demand verging on disowning of the obligation under the decree”. This principle was explained by Justice Krishna Iyer in Jolly George Varghese v. Bank of Cochin[1], his lordship further stated that,

“To be poor, in this land of daridra narayana, is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness.

Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the covenant. But this is precisely the interpretation we have put on the proviso to Section 51, CPC and the lethal blow of Article 21 cannot strike down the provision, as now interpreted.”

[1] AIR 1980 SC 470.