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PAPER ON

ARREST AND DETENTION IN CIVIL PRISON [Order XXI Rule 37]

SUBMITTED FOR THE PURPOSE OF INTERNAL ASSESSMENT

Civil Procedure Code

SECOND SEMESTER

LL.B. (HONS.) IN INTELLECTUAL PROPERTY LAW

AT RGSOIPL – IIT KHARAGPUR

UNDER ABLE GUIDANCE OF: SUBMITTED BY:

Prof. S.R. Subramaniam Sathyagopal.N

17IP63023
INTRODUCTION

The Code of Civil Procedure lays down various modes of executing a decree.
One of such modes is arrest and detention of the judgment-debtor in a civil
prison. The decree-holder has an option to choose a mode for executing his
decree and normally, a court of law in the absence of any special circumstances,
cannot compel him to invoke a particular mode of execution. Sections 51 to 59
and Rules 30 to 40 of Order XXI deal with arrest and detention of the judgment
debtor in civil prison. The substantive provisions deal with the rights and
liabilities of the decree-holder and judgment debtor and procedural provisions
lay down the conditions thereof.

The provisions are mandatory in nature and must be strictly complied with. They
are not punitive in character. The object of detention of judgment-debtor in a
civil prison is twofold. On one hand, it enables the decree-holder to realise the
fruits of the decree passed in his favour; while on the other hand, it protects the
judgment-debtor who is not in a position to pay the dues for reasons beyond his
control or is unable to pay. Therefore, mere failure to pay the amount does not
justify arrest and detention of the judgment-debtor inasmuch as he cannot be
held to have neglected to pay the amount to the decree-holder.

Order XXI:
Rule 37:

Discretionary power to permit judgment debtor to show cause against


detention in prison -

(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 in
the civil prison of a judgment debtor who is liable to be arrested in pursuance of
the application, the court shall, instead of issuing a warrant for his arrest, issue
a notice calling upon on him to appear before the court on a day to be specified
in the notice and show cause why he should not be committed to the civil prison:

Provided that such notice shall not be necessary if the court is satisfied, by
affidavit, or otherwise, 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.

(2) Where appearance is not made in obedience to the notice, the court shall, if
the decree holder so requires, issue a warrant for the arrest of the judgment
debtor.

Procedure:

A judgement-debtor may be arrested at any time and on any day in execution


of a decree. After his arrest, he must be brought before the Court as soon as
practicable. For the purpose of making arrest, no dwelling house may be entered
after sunset or before sunrise. Further, no outer door of a dwelling house may
be broken open unless such dwelling house is in the accompany of the
judgment-debtor and he refuses to prevent access thereto. Again, where the
room is in the actual occupancy of a Pardanashin woman who is not the
judgement- debtor, reasonable time and facility should be given to her to
withdraw there from. No order to detention of the judgement-debtor shall be
made where the decretal amount does not exceed rupees five hundred. No
judgement-debtor may be arrested unless and until the decree holder pays into
Court the subsistence allowance as fixed by the Court. Where the judgement-
debtor pays the decretal amount and costs of arrest to the officer, he should be
released at once.

Who cannot be arrested?

As per the Civil Procedure Code, the following classes of persons cannot be
arrested or detained in a civil prison:

1. Judicial officers, while going to, presiding in or returning from their courts
2. A woman
3. The parties, their pleaders, mukhtars, revenue agents and recognised
agents and their witnesses acting in disobedience to a summons, while
going to, or attending or returning from the court
4. Members of legislative bodies
5. Any person or class of persons, whose arrest, according to the State
Government, might be attended with danger or inconvenience to the
public
6. A judgment-debtor, where the decretal amount does not exceed rupees
two thousand

Notice:

Where the decree is payment of money and the application is made for arrest
and detention of the judgement-debtor, the Court shall, instead of issuing a
warrant for arrest, issue a notice called upon the judgement-debtor to appear
and show cause why he should not be committed to civil prison in execution of
the decree. The underlying object of “issuing notice is to” afford protection to
honest debtors incapable of paying dues for reasons beyond their control.

Where the judgement-debtor 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 judgement-debtor 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.

Where the judgement-debtor does not appear in obedience to the notice under
Rule 37, the Court shall, if the decree-holder so requires, issue a warrant for the
arrest of the Judgement-debtor.

Where a money decree has remained unsatisfied for a period of thirty days, the
Court may, on the application of the decree holder, require the judgement-
debtor to make an affidavit stating the particulars of his assets. The person
disobeying the order may be detained upto three months.

Power and duty of the court

The provisions relating to arrest and detention of the judgment-debtor protect


and safeguard the interests of the decree-holder. If the judgment-debtor has
means to pay and still he refuses or neglects to honour his obligations, he can
be sent to civil prison. Mere omission to pay, however, cannot result in arrest or
detention of the judgment-debtor. Before ordering detention, the court must
be satisfied that there was an element of bad faith, “not mere omission to pay
but an attitude of refusal on demand verging on demand verging on disowning
of the obligation under the decree”.

The above principles have been appropriately explained by Krishna Iyer, J.


in Jolly George Verghese v. Bank of Cochi in the following words:

“The simple default to discharge is not enough. There must be some element of
bad faith beyond mere indifference to pay, some deliberate or recusant
disposition in the past or alternatively, current means to pay the decree or a
substantial part of it. The provision emphasises the need to establish not mere
omission to pay but an attitude of refusal on demand verging on dishonest
disowning of the obligation under the decree. Here, a consideration of the
debtor’s other pressing needs and straitened circumstances will play
prominently. We would have, by this construction, sauced law with justice,
harmonised Section 51 with the covenant and the Constitution.”

It was ultimately propounded:

“It is too obvious to need elaboration that to cast a person in prison because of
his poverty and consequent inability to meet his contractual liability is appalling.
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 51 of CPC
and the lethal blow of Article 21 cannot strike down the provision, as now
interpreted”
Section 55

Arrest and detention.- (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 the detention is situate, or where such civil prison does
not afford suitable accommodation, in any other place which the State
Government may appoint for the detention of persons ordered by the Courts of
such district to be detained:

Provided, firstly, that, for the purpose of making an arrest this section, no
dwelling-house shall be entered after sunset and before sunrise:

Provided, secondly, that 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 thereto, but when the officer authorized
to make the arrest has duly gained access to any dwelling-house; he may break
open the door of any room in which he has reason to believe the judgment-
debtor is to be found:

Provided, thirdly that, if the room is in the 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 authorized to make 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 arrest:

(2) The State Government may, by notification in the official gazette, declare
that any person or class of persons whose arrest might be attended with danger
or inconvenience to the public shall not be liable to arrest in execution of a
decree otherwise than in accordance with such procedure as may be prescribed
by the State Government in this behalf.

(3) Where a judgment debtor 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 declare 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 for
the time being in force.

(4) 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 realised or commit
him to the civil prison in the execution of the decree.

Period of Detention:

The period of detention of the judgement-debtor in the civil prison shall be (a)
upto three months, where the decretal amount exceeds rupees one thousand;
and (b) upto six weeks, where the decretal amount exceeds rupees five hundred
but does not exceed rupees one thousand.

Release of Judgment-Debtor:

A judgement-debtor may be released from detention in the following


circumstances:

(a) Premature release

(b) Release on the ground of illness.

(a) Premature Release:

A Judgement-debtor shall be released before the expiry of the period of


detention on the following grounds:

(i) on the amount mentioned in the warrant being paid; OR

(ii) on the decree against him being otherwise fully satisfied; OR

(iii) on the request of the decree-holder; OR

(iv) on the omission by the decree-holder to pay subsistence allowance.


Such release, however, does not discharge the judgement-debtor from his debt,
but he cannot re-arrested on the same ground.

(b) Release on the Ground of Illness:

The Judgement-debtor may also be released by the Court or by the Government


on the ground of illness.

Section 59

Release on ground of illness:

(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.

(2) 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.

(3) Where the judgment-debtor has been committed to the civil prison, he may
be released therefrom-

(a) by the State Government, on the ground of the existence of any infectious or
contagious disease, or

(b) by the committing Court, or any Court to which that Court is subordinate, on
the ground of his suffering from any serious illness.

(4) A judgment-debtor released under this section may be re-arrested, but the
period of his detention in the civil prison shall in the aggregate exceed that
prescribed by section 58.

The provisions of Section 59 are based on purely humanitarian grounds. If the


judgement-debtor is suffering from serious illness, the Court should release him
so as to escape from the moral responsibility in case anything happens to him.

Being a beneficial provision, Section 59 should be construed liberally and


humanitarian impulse should not be lost sight of when applying it to the facts of
the case.
Requirements of Section 51 and Order XXI Rule 37 of the Code

What is manifest from the provisions of Section 51 and rule 37 of the order XXI
of the CPC is-

1. The Court has power conferred upon it under Section 51 of the Code to
order the execution of a decree for the payment of money by arrest and
detention of the judgment-debtor in prison on the application of a decree
holder.

2. The condition precedent for the exercise of the power is that it should be
prescribed by the Court’s affording an opportunity to the judgment-
debtor of showing cause as to why he should not be committed to civil
prison.

3. The Court should be satisfied, for reasons to be recorded in writing that


the judgment-debtor has or has had, since the date of the decree, the
means to pay the amount of the decree or some substantial part thereof
and that the judgment-debtor has refused or neglected to pay the same.

4. The court instead of issuing a warrant for the arrest of the judgment-
debtor, shall have to issue notice calling upon the judgment-debtor to
appear before the Court and show cause why he should not be committed
to the civil prison.

5. Where no such appearance is made in obedience to the notice and if the


decree-holder so requires, it is rendered obligatory on the part of the
Court to issue a warrant for the arrest of the judgment debtor.

The provisions of section 51 and rule 37 are to be construed as mandatory. The


use of word ‘shall’ makes the provision mandatory. When each and every step
contemplated under section 51 and order 21, CPC is mandatory and when the
liberty of the petitioner is involved, the executing Court must exhibit care and
caution to ensure that each step is followed scrupulously. In the case, since the
order under revision disclosed that there was a clear deviation from the
prescribed procedure, it cannot be sustained. The same is accordingly set aside.

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