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Arrest & Detention

A Project Report on :

Arrest & Detention as Modes of Execution

Submitted To:

Dr. Karan Jawanda

(Assistant Professor, UILS,

Panjab University, Chandigarh)

Submitted By:

Somnath Tayal

B.A.L.L.B (Hons.)

95/13

Section: B

Semester: VIII

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Arrest & Detention

ACKNOWLEDGEMENT

I acknowledge with gratitude my indebtedness to Dr. Karan Jawanda for giving me the
opportunity to work on this project and gave valuable guidance for preparing the project.

I would like to t bbbbbbbbbhank those people who directly or indirectly helped me to enhance
my practical knowledge in the field of commerce and I express my sincere gratitude and to all
those who shared all those thoughts with me.

I am grateful to my teachers who guided me throughout the completion of this project report. I
would like to thank my parents for their unimpeachable trust in me and the moral support.
Finally, I would like to thank God, who helped me through those times when the completion of
this project seemed a hard nut to crack.

I would like to thank the respective library of UILS and the very humble library staff for their co-
operation and help.

Somnath Tayal

95/13

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Arrest & Detention

TABLE OF CONTENTS
Introduction

Execution: Meaning

Arrest & Detention


When Arrest can be ordered
Who cannot be Arrested
Power & Duty of the Court
Procedure (Section 55)

Courts Duty after Arrest of the Judgment Debtor


Arrest & Insolvency
Discharge of Surety
Other Substantive Provisions

Release of Judgement Debtor


Release on the ground of illness
Satisfaction of the Decree

Procedural Provisions

Conclusion
Bibliography

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INTRODUCTION

Order 21 of the Code of Civil Procedure deals with the solemn act of execution of the decrees
passed by the Courts from grassroots to the top.Execution is the last stage of any civil litigation.
There are three stages in litigation:

1. Institution of litigation.
2. Adjudication of litigation.
3. Implementation of litigation.

Implementation of litigation is also known as execution. A decree will come into existence where
the civil litigation has been instituted with the presentment of plaint. Decree means operation or
conclusiveness of judgement. Implementation of a decree will be done only when parties has
filed application in that regard. A decree or order will be executed by court as facilitative and not
as obligation. If a party is not approaching court, then the court has no obligation to implement it
suomoto. A decree will be executed by the court which has passed the judgement. In exceptional
circumstances, the judgement will be implemented by other court which is having competency in
that regard.1

Execution is the medium by which a decree- holder compels the judgement-debtor to carry out
the mandate of the decree or order as the case may be. It enables the decree-holder to recover the
fruits of the judgement. The execution is complete when the judgement-creditor or decree-holder
gets money or other thing awarded to him by judgement, decree or order.

1https://www.lawctopus.com/academike/concept-execution/, published on April 5,


2015 by Abhishek Kumar, last accessed at 6:00 P.M. on 02/03/2017,

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ARREST & DETENTION

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 41 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.2

WHEN ARREST CAN BE ORDERED

Where the decree is for the payment of money, it can be executed by arrest and detention of the
judgment debtor.Likewise, in case of a decree for specific performance of contract or for
injunction, a judgment debtor can be arrested and detained. Again, where a decree is against a
corporation, it can be executed with the leave of the court by detention in civil prison of its
directors or other officers.

Section 55 Clause (2) of this section is intended to cover the cases of certain persons or classes
of persons whose summary arrest might, as in the case of Railway Servants, be attended with
danger or inconvenience to the public in general. However, where a suit is brought against such a
person, the fact that he could not be arrested in execution is not a ground for not passing a decree
against him.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;

2https://www.lawctopus.com/academike/arrest-and-detention-under-civil-
law/#_edn1, published on February 14, 2015 by Harpreet Kaur, last accessed at
6:34 PM on 02/03/2017

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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.

POWER & 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.In Jolly George Verghese v. Bank of
Cochin3, Justice Krishna Iyyer explained in 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 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 debtors other pressing needs and
straitened circumstances will play prominently.

RECORDING OF REASONS

The Court is required to record reasons for its satisfaction for detention of the judgment-debtor.
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.

PROCEDURE [Section 55]

3 (1980) 2 SCC 360.

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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 prevents 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.4

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.

4Mulla, The Code of Civil Procedure, LexisNexis, 14th edition, 2010

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OBJECT:The object of this section is to prevent the vexatious forms of resistance to execution
proceedings which constantly obstruct decree-holders in the execution of their decrees. But
before a judgment-debtor can be arrested this section governs his case and lays down certain
limitations.

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.

COURTS DUTY AFTER ARREST OF THE JUDGEMENT


DEBTOR
A Court executing a decree for money is bound to inform the judgment-debtor when he is
brought under arrest before it that he may apply to be declared an insolvent and that he might be
discharged on complying with the requirement of the law. This clause does not entitle the debtor
to be declared an insolvent where his application does not comply with the provisions of
insolvency law.It is open beyond the time given to apply at subsequent due, to be declared an
insolvent on the strength of the permission previously given. But if the application of a
judgment-debtor to be declared an insolvent has been dismissed and he is re-arrested in
execution of decree against him he is not entitled to a release on expressing his willingness to
apply again to be declared an insolvent, so long as the bar of the previous dismissal is not
removed. A person arrested and brought up before the Court might be discharged on giving
security and stating his intention to apply to be declared an insolvent, but if he has been sent to
prison, he can only be released under Section 58, he cannot obtain his release from prison upon
the mere admission of his subsequent petition of Insolvency under section 21 of the Provisional
Insolvency Act.

ARREST & INSOLVENCY

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If a judgment-debtor against whom an order for arrest has been made, is adjudicated insolvent
without a protection order, the adjudication does not prevent his arrest and the court of execution
must require the judgment-debtor to give security under the latter part of sub-section (4) that he
will appear when called upon in any proceeding in insolvency or upon the decree in execution of
which he was arrested.5

Section 55(4) provides for a time limit of one month within which the judgment-debtor must
apply to be declared insolvent. The court has no power to extend the period of one month for
applying for adjudication. Section 148 does not apply to such a case. Where a judgment-debtor
fails to apply for insolvency within a period of one month of his release, the option to commit
him to prison or to realize the security lies with the Court and not with the decree-holder.

Sub-section (4) makes it clear that where a surety undertakes: DISCHARGE OF SURETY

1. That the judgment-debtor will within one month apply to be declared an insolvent; and

2. Will appear, when called upon, in any proceeding upon the application or upon the decree
in execution of which he was arrested, the security will be realized when there is failure
to comply with either condition. The surety, however, is not released by the mere filing
by the judgment-debtor of the petition in insolvency; the security continues until a final
order is made on the petition. When a bona fide petition was presented within one month
but was rejected as not being in proper form and a fresh petition was presented later and
the debtor was adjudged insolvent, the surety was discharged. A security-bond furnished
for the appearance of the judgment-debtor is in the nature of continuing guarantee and
when the surety produces the judgment-debtor before the Court and requests to be
absolved from further liability under the bond, the Court should not refuse to grant the
prayer, but he cannot be discharged unless he has fully carried out his undertaking.6

5Takwani, C.K., Civil Procedure, Eastern Book Company, 7th edition, 2015

6 Supra Note 4.

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A surety under this section is discharged by the death of the judgment-debtor before breach of
either of the two conditions mentioned above. But the death of the judgment-debtor after the first
condition has failed, namely, the undertaking to apply to be declared an insolvent within one
month, cannot affect the suretys liability with regard to that condition. A surety is also
discharged if the execution proceedings are struck off or dismissed for default of appearance
even though they are subsequently restored. If the court makes an erroneous order discharging a
surety, the decree-holder may apply for revision of the order, but cannot treat it as a nullity.7

Sub-section (4) provides that if the judgment-debtor fails to apply or to re-appear, the Court may
either direct the security to be realized or commit the judgment-debtor to prison. This is an
alternative and not a concurrent remedy. It does not mean that the Court can proceed both against
the surety and the judgment-debtor. The mere fact that the judgment-debtor is re-arrested or that
a warrant is issued against him is not sufficient of itself to discharge the surety.

APPEAL OR REVISION

An order made under Section 55(4) is appealable.But an order refusing to discharge a surety
from liability under a bond in terms of this section is not appealable, nor is an order refusing an
application for recovery of the amount decreed from a surety.When the surety makes an
application to have his surety bond cancelled the order is passed on such application. It is not
appealable his remedy is by way of revision.

OTHER SUBSTANTIVE PROVISIONS

SECTION 56:-This section exempts all women from arrest in execution of a decree for the
payment of money. In MoonsheeBuzloorRuheem v. Shumsoonissa8, it was held that a woman
may however be detained in the civil prison in execution of a decree for restitution of conjugal
rights, but now Since the amendment in 1923 the decree for restitution of conjugal rights is

7http://www.advocatekhoj.com/library/bareacts/codeofcivilprocedure/orderXXI.php?
Title=Code%20of%20Civil%20Procedure,%201908&STitle=Execution%20of%20Decrees
%20And%20Orders, last accessed at 6:15 PM on 04/03/2017.

811 M.I.A 551.

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enforceable only by the attachment of the property of the defendantA woman cannot be arrested
in execution of a decree for the payment of money; at the same time, if the plaintiff is a woman
and her suit is for the payment of money, she may be required to give security for the defendants
costs.

SECTION 57:-No arrest without subsistence allowance: A judgment-debtor shall not be


arrested in execution of a decree unless and until the decree-holder deposits into the Court, an
amount fixed by the judge, sufficient for the sake of subsistence of judgment-debtor, from the
timeof his arrest until he canbe brought before the Court. And on the omission by the decree-
holder to pay the subsistence allowance may result in the release of the judgment debtor.

RELEASE OF JUDGEMENT DEBTOR

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

(a) Premature release,

(b) Release on the ground of illness.

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.

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Such release, however, does not discharge the judgement-debtor from his debt, but he cannot be
re-arrested on the same ground.The immunity of judgment-debtor from a second arrest depends
not only upon his having been arrested, but also upon his having been detained in jail under the
arrest. Similarly, where a judgment-debtor was arrested, but was liberated without having been
sent to jail, owing to non-payment of subsistence money, it was held that he was liable to be re-
arrested in execution of the same decree.9

INTERIM PROTECTION ORDER:A is arrested and committed to jail in execution of a


decree against him. While in jail he files his petition in insolvency, and obtains an interim
protection order for one week, and is thereupon released from jail. He then applies for a further
protection order, but his application is refused. Is A liable to be re-arrested in execution of the
same decree? The Calcutta High Court has held in Judah v. Secretary of State for India 10, that
he is not liable to be re-arrested, on the ground that a judgment debtor was once discharged from
jail, cannot be arrested a second time in execution of the same decree. On the other hand, the
High Court of Bombay has held in Shamji v. Poonja11,that A is liable to be re-arrested, as only
cases in which a judgment-debtor is exempt from re-arrest are those specified insection 58 and
that release under an interim protection order is not one of them.

Section 59 : The Judgement-debtor may also be released by the Court or by the Government on
the ground of illness.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.

The provisions of the Section 59 Civil Procedure Code are self-contained and are not controlled
by the provisions of Section 55(3) and (4) and are based on purely humanitarian grounds.

9http://www.assignmentpoint.com/arts/law/the-code-of-civil-procedure-1908-lecture-
04.html, last accessed at 4:04 PM on 05/03/2017.

10(1886) 12 Cal. 445

11(1902) 26 Bom 652

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PROCEDURAL PROVISIONS

ORDER XXI, RULE 37

SCOPE & APPLICATION


The Court can issue warrant for the arrest of the judgment-debtor only when he fails to make
appearance in obedience to the notice issued under rule 37(1). If he makes appearance, the Court
is to proceed with the enquiry as contemplated in rule 40. Upon the conclusion of such enquiry if
the Court decides to make an order for detention of the judgment-debtor in the civil prison, it can
cause him to be arrested if he is not already under arrest, as provided in sub-rule (3) of rule 40.
The executing Court should necessarily go into the question of means of the judgment-debtor to
pay the decree amount after the latter is arrested and brought to Court and before deciding
whether the judgment-debtor has to be committed to prison or not. From the provisions
mentioned in Rule 37, it is clear that before passing an order of arrest of the judgment-debtor, the
executing Court is required to issue a notice calling upon judgment-debtor to show cause why he
should not be committed to the civil prison. Under the proviso to rule 37, this notice can be
dispensed with if the executing Court is satisfied that the judgment-debtor is likely to abscond or
leave the local limits of the jurisdiction of the Court with the object of delaying the execution.12

The Court can refuse to commit the defendant to jail if it is satisfied that the decree against him
was passed without jurisdiction or obtained by fraud or that the judgment-debtor is not in a fit
state of health to undergo confinement.The direction for arrest is an extreme consequence that
can be resorted to if there is adequate proof of refusal to comply with a decree in spite of the fact
that the judgment-debtor is possessed of sufficient means to satisfy the same.

SECTION 51 & RULE 37 OF THE CODE

12 Supra Note 5.

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Joint reading of these two provisions manifest:

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 Courts 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.

ORDER XXI, RULE 38

The officer is only empowered to arrest and detain the judgment-debtor for such a reasonable
time as is sufficient to allow of his being brought before the Court. The judgment-debtor has to
pay amount ordered to be paid in the warrant and if a mistake has been committed in calculating
the figure it is open to the judgment-debtor to take appropriate proceedings in Court.

ORDER XXI, RULE 39

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SUBSISTENCE MONEY

The subsistence money must be paid in advance by the decree holder before the execution can be
put in force. The prisoner has a right to be discharged on the happening of any one of the
contingencies specified in section 58. On a failure of the subsistence money ordered, the
detention of the prisoner becomes illegal and he is immediately entitled to his discharge. There is
no form of application imperatively necessary for him to adopt in asking for his discharge on a
failure of subsistence money.

FIXATION OF INSTALMENT

The fixation of instalments after an enquiry into the means and the ability of the judgment-debtor
to pay in many cases is much fairer to the judgment-debtor who, whilst not being in a position to
discharge the decree in full, can certainly pay something towards its discharge. After the
installments have been fixed by the Court, then a failure to comply with the Court order would
immediately justify arrest and commitment to prison. This procedure would be perfectly
admissible under proviso (b) to the Section 51.13
ORDER XXI, RULE 40

The new rule has to be read with section 51. Under the old rule, it was not necessary for the
decree holder to lead, in the first instance, any evidence in support of his application for the
arrest of the judgment-debtor. When the judgment-debtor appeared or was brought before the
court, he had to prove that from poverty or other sufficient cause he was unable to pay the
decrial amount, in default of which an order of commitment could ordinarily be made. Now, the
procedure is regularized and the Court has to hold a formal inquiry in which the decree-holder
has, in the first instance, to lead evidence in support of his application and then when a prima
facie case for commitment is made out, the Court must give the judgment-debtor an opportunity
of showing cause against the application.

13http://www.aaptaxlaw.com/code-of-civil-procedure/order-xxi-code-of-civil-procedure-rule-
37-38-39-40-arrest-and-detention-in-the-civil-prison-order-xxi-of-cpc-1908-code-of-civil-
procedure.html, last accessed at 5:30 PM on 05/03/2017.

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The Court is under an obligation to follow the above procedure and that is not dependent on
whether the judgment-debtor has or has not shown cause in response to a notice issued under rule
37. The Court shall give an opportunity to the judgment-debtor of showing cause why he should
not be committed to civil imprisonment.But no order for commitment can be made unless the
Court is satisfied on any of the grounds set out in the proviso to section 51 and other provisions
of the Code that the commitment of the judgment-debtor to civil prison is necessary; the burden
of proving this will obviously lie on the decree-holder. Then, again, the proviso to section 51
requires the Court to record its reasons in writing before making an order of commitment.

SCOPE

In order to give the judgment debtor an opportunity of satisfying the decree, the Court before
making the order of detention, may leave the judgment-debtor in the custody of an officer of the
Court.The executing Court can continue to exercise its judicial jurisdiction regarding detention
of judgment-debtors in Civil Prison until the expiry of maximum period of three months
provided that the concerned judgment-debtor gets a right to be released in accordance with
proviso to section 58(1) of the CPC or the Court cannot exercise its power to order re-arrest in
view of section 58(1)(a) of the CPC.14

Sub-rule (2) provides that the Court may release the judgment-debtor on his furnishing security,
which means furnishing proper security and not illusory security.

14Supra Note 4.

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CONCLUSION

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.

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 41 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.

When the judgment debtor refuses to pay the money or does not comply with the courts order,
then the decree holder can enforce it through arrest. Before ordering arrest, a court must record
its reasons in writing for doing so. However, it just be noted that mere inability to pay will not
lead to an arrest. There are also certain restrictions with respect to persons who can be arrested.
This paper deals with the substantive and procedural aspects of such arrest and detention.

BIBLIOGRAPHY
Books Referred:

Mulla, The Code of Civil Procedure, LexisNexis, 14th edition, 2010


Takwani, C.K., Civil Procedure, Eastern Book Company, 7th edition, 2015

Webliography:

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https://www.lawctopus.com/academike/concept-execution/
http://www.advocatekhoj.com/library/bareacts/codeofcivilprocedure/orderXXI.php?
Title=Code%20of%20Civil%20Procedure,%201908&STitle=Execution%20of
%20Decrees%20And%20Orders
http://www.assignmentpoint.com/arts/law/the-code-of-civil-procedure-1908-lecture-
04.html
http://www.aaptaxlaw.com/code-of-civil-procedure/order-xxi-code-of-civil-procedure-
rule-37-38-39-40-arrest-and-detention-in-the-civil-prison-order-xxi-of-cpc-1908-code-of-
civil-procedure.html
http://www.legalservicesindia.com/articles/fore.htm
http://www.shareyouressays.com/114416/legal-provisions-of-section-56-of-code-of-civil-
procedure-1908-c-p-c-india-arrest-detention

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