Arrest And Detention Under Civil Law

On February 14, 2015 By kudrat

By Harpreet Kaur, UILS, Chandigarh

“Editor’s Note: Arrest usually take place when a person is suspected of having committed a
criminal offence. However, arrest and detention is also a mode of enforcing the decree of a civil
court. It depends on the decree holder whether he wants to opt for this mode of execution. When
the judgment debtor refuses to pay the money or does not comply with the court’s 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.”

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[i].
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.

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.[ii] 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.

When arrest and detention may be ordered

Where the decree is for the payment of money, it can be executed by arrest and detention of the
judgment debtor.[iii] Likewise, in case of a decree for specific performance of contract or for
injunction, a judgment debtor can be arrested and detained.[iv] 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.[v]

Who cannot be arrested

As per the Civil Procedre 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[vii];
2. A woman[vi];
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[viii];
4. Members of legislative bodies[ix];
5. Any person or class of persons, whose arrest, according to the State Government, might
be attended with danger or inconvenience to the public[x];
6. A judgment-debtor, where the decretal amount does not exceed rupees two thousand[xi].

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[xii]. 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[xiii]. 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 succinctly and appropriately explained by Krishna Iyer, J.
in Jolly George Verghese v. Bank of Cochin[xiv], 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”.[xv]
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[xvi]. Such reasons should be
recorded every time and in every proceeding in which the judgment-debtor is ordered to be
detained.[xvii]

Substantive Provisions
Section 55
Section 55 reads as follows:

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:

Provided, fourthly, that, where the decree in execution of which a judgment debtor is arrested, is
a decree for the 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.

(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 andd
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.

Object of the section

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.

Applicability of this section

It has been provided by this section that a judgment-debtor may be arrested in execution of a
decree at any hour of the day and on any day of the month and shall as soon as practicable be
brought before the Court subject to the following limitations:

1. That no dwelling or house shall be entered after sunset and before sunrise.
2. 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 prevent 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 judgment-debtor is to be found.
3. That if the room is in the actual occupation of a woman who is not the judgment-debtor
and who according to customs does not appear in public, the officer authorized to make
arrest shall have to give a notice to her that she is at liberty to withdraw and allow her
reasonable opportunity to withdraw therefrom before entering into the room for the
purpose of making arrest.
4. That if the decree is for the payment of money, no arrest shall be made if the judgment-
debtor pays the full decrial amount and the costs of the arrest to the officer arresting
him.[xviii]

Judgment-debtor

A woman is exempt from arrest under this section. A woman may, however, be detained in the
civil prison[xix] in execution of a decree for restitution of conjugal rights[xx].

May be arrested
The Civil Procedure Code does not prevent a judgment-debtor from being arrested a second time
on account of the same decree where he has been released on the application of the judgment
creditor[xxi]. A judgment-creditor has the option of enforcing his decree against the person or
the property or both of the judgment-debtor[xxii]. It is otherwise, however, where the decree is
against the property only. A judgment-debtor cannot be arrested and imprisoned separately for
the default in the payment of each installment[xxiii]. A person is not protected from arrest in the
execution of decree, merely because his property is in the hands of the receiver in
insolvency[xxiv].

Exemption from arrest of certain persons

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[xxv].

Court’s duty after the arrest of the judgment-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, but not on re-arrest after failing in
insolvency proceedings[xxvi]. This clause does not entitle the debtor to be declared an insolvent
where his application does not comply with the provisions of insolvency law.[xxvii]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[xxviii]. 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. Prior to the adjudication,
the rights are unaffected[xxix]. 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[xxx].

Arrest and Insolvency

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[xxxi].

Expresses his intention to apply to be Declared Insolvent

This expression of intention is equivalent to a statement made to the judgment-creditor by the

judgment-debtor of an intention to suspend the payment of his debts. It is, therefore, an act of
insolvency as defined in section 9 of the Presidency-Towns Insolvency Act. If the surety is
furnished and accepted, the order cannot be reviewed and a direction is given for the execution
of a fresh surety bond[xxxii].

Time limit

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[xxxiii]. The word ‘month’ is
introduced into this section by way of defining the obligation of the surety. The intention
expressed is to be declared insolvent and not to be declared insolvent at the end of a month
provided nothing does turn up[xxxiv]. 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[xxxv].

Discharge of Surety

Sub-section (4) makes it clear that where a security bond is passed in the terms of that sub-
section, that is, where a surety undertakes:

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[xxxvi]. A bona fide petition is sufficient compliance with
the condition of the bond. 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[xxxvii]. 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[xxxviii].

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 surety’s liability with regard to that condition[xxxix]. A surety is also
discharged if the execution proceedings are struck off or dismissed for default of appearance
even though they are subsequently restored, but not if liability had already accrued under the
bond by a breach of either of the two conditions before the proceedings were struck off[xl]. 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[xli].

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. If the surety is proceeded against and the amount is
recovered from him, the judgment-debtor is committed to jail, in execution. If the judgment-
debtor is committed to jail, the position is just the same as if the surety had never come
forward[xlii]. But 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[xliii].

Damages for arrest

In a suit for damages on account of arrest the plaintiff must show: (i) that the original action, out
of which the alleged injury arose, was decided in his favour; (ii) that the arrest was procured
maliciously without the reasonable and probable causes and (iii) that he has suffered “some
collateral wrong”[xliv].

Appeal or revision

An order made under Section 55(4) is appealable.[xlv] An order refusing executing of decree
simultaneously against the person and property is appealable as a decree; so is an order under
Section 55(4) rejecting an application for the forfeiture of a security bond; so is an order passed
by the Court executing a decree for the imprisonment of the judgment-debtor[xlvi]. But an order
refusing to discharge a surety from liability under a bond in terms of this section is not
appealable[xlvii], nor is an order refusing an application for recovery of the amount decreed
from a surety.[xlviii]

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 the way of revision[xlix].

Section 56
Section 56 provides that:

Prohibition of arrest or detention of women in execution of decree for money- 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.

Scopeà This section exempts all women from arrest in execution of a decree for the payment of
money. In Moonshee Buzloor Ruheem v. Shumsoonissa[l], it was held that a woman may
however be detained in the civil prison in execution of a decree for restitution of conjugal rights.
Since the amendment in 1923 the decree for restitution of conjugal rights is enforceable only by
the attachment of the property of the defendant[li].

Security for costsà A 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 defendant’s costs[lii].

Section 57
The Section 57 says:

Subsistence allowance- The State Government may fix scales, graduated according to rank, race
and nationality, of monthly allowances payable for the subsistence of judgment debtors.

No arrest without subsistence allowanceà 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 time of his arrest until
he can be brought before the Court[liii]. And on the omission by the decree-holder to pay the
subsistence allowance may result in the release of the judgment debtor[liv].

Section 58
Section 58 reads as under:

Detention and release- (1) Every person detained in the civil prison in execution of a decree
shall be so detained-

1. Where the decree is for the payment of a sum of money exceeding five thousand rupees,
for a period not exceeding three months, and
2. where the decree is for the payment of a sum of money exceeding two thousand rupees,
but not exceeding five thousand rupees, for a period not exceeding six weeks:

Provided that he shall be released from such detention before the expiration of the said period of
detention-

1. on the decree against him being otherwise fully satisfied, or

2. on the amount mentioned in the warrant for his detention being paid to the officer-in-
charge of the civil prison, or
3. on the request of the person on whose application he has been so detained, or
4. on the omission by the person, on whose application he has been so detained, to pay
subsistence allowance:

Provided also, that he shall not be released from such detention under Clause (ii) or Clause (iii),
without the order of the Court.

(1-A) For the removal of doubts, it is hereby declared that no order for detention of the
judgment-debtor in civil prison in execution of a decree for the payment of money shall be made,
where the total amount of the decree does not exceed two thousand rupees.

(2) A judgment-debtor released from detention under this section 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 in the civil prison.

Scope of the section

This section prescribes a maximum time limit for the judgment-debtor’s detention, but provides
that the debt is not discharged thereby; the creditor has got a right to proceed against the debtor’s
property[lv]. It applies to all decrees and not to money decree alone[lvi]. But period of detention
prescribed in section 58 applies to money decree only[lvii].

Period of detention

Before the section was amended the Court had no authority to fix any term for the imprisonment
of a judgment-debtor under this rule. The period of prior imprisonment that had elapsed after the
passing of the decree was counted and that period plus the new period amounted altogether to a
total period of imprisonment, then this rule applied.[lviii] A judgment-debtor, who has been
imprisoned in execution of a decree, if the several periods of his imprisonment be added
together, for more than the maximum period for which he can be legally kept in prison, is
entitled to his release. A judgment debtor cannot be arrested and imprisoned separately for the
default in the payment of each installment[lix].

According to Patna High Court, the new sub-section (I-A) applies even to pending cases, that is,
to applications filed in force but which were pending on 10th September, 1976 when the re-
amended section came into force[lx]. Where, however, the decrial amount is more than Rs. 500,
but does not exceed Rs. 1000, the maximum period of detention is six weeks. Where the amount
of the decree exceeds Rs. 1000, the period of detention cannot exceed three months.

Discharge of the debtor on the request of the decree-holder

Where the decree-holder applied for execution of his decree after the release of the judgment-
debtor on the request of the decree holder, he was met by the objection that an adjustment had
taken place. The matter was the subject of inquiry because it was a proceeding taken out of
Court. The High Court, however, held that the decree-holder was bound to state why he applied
to have debtor discharged and that if no adequate reasons were shown must be taken to have had
his decree satisfied[lxi].

Re-arrest

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. Thus, where the
judgment-debtor, while acting as pleader in Court, was arrested and discharged on the ground
that he was exempt from arrest under S. 642 of the Code of Civil Procedure (now S. 135), it was
held that he was liable to be re-arrested in execution of the same decree against him[lxii].
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[lxiii]. Sub-section (2) refers to release from detention in jail and
not to release from detention in the Courthouse[lxiv].

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 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[lxv]. On the other hand,
the High Court of Bombay has held that A is liable to be re-arrested, as only cases in which a
judgment-debtor is exempt from re-arrest are those specified in this section and that release
under an interim protection order is not one of them[lxvi].

Contempt of Court

This section does not apply to cases of imprisonment for contempt of Court[lxvii].

Satisfaction of the Decree

The question that arises is whether the debt can be said to have been discharged merely because
the judgment-debtor has been detained in civil prison for a full term. Section 51 of the CPC
merely prescribes different modes for achieving an object. If the object is the realization of the
dues, this object cannot be said to have been achieved merely because the judgment-debtor was
detained in civil prison. It is for this reason; there is provision in sub-section (2) of section 58 of
the CPC that a judgment debtor released from detention shall not, merely by reason of his
release, be discharged from his debt[lxviii].

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.

Provisions of the section whether controlled by Sections 53(3) and (4)

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[lxix].
Release

The adoption of either or both courses lies entirely within the discretion of the Court[lxx]. A
court is not bound to issue a warrant of arrest[lxxi].

Procedural Provisions
Order XXI, Rule 37
Order 37 provides:

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 a warrant for his
arrest, issue a notice calling upon 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 of 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.

Scope and application

Notice may be issued against a judgment-debtor who in other execution proceedings has made an
application to be declared insolvent. 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[lxxii].

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.[lxxiii] 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.[lxxiv] The aspect of deliberate refusal or negligence has to be necessarily established
by the decree-holder to the satisfaction of the executing Court.
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.[lxxv] 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. Unless this
aspect is adverted to, certainly an order of arrest cannot be made[lxxvi]. Where a judgment-
debtor fails to appear after a notice under this rule is served on him and a warrant for his arrest is
issued by the Court in the presence of the decree-holder’s pleader, the proceedings constitute an
application to take a step-in-aid of execution.[lxxvii]

Requirements of Section 51 and 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[lxxviii]. 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[lxxix].

Purpose

The purpose of issuing a notice is to afford protection to honest debtors incapable of paying dues
for reasons beyond their control.[lxxx] This rule recognizes a rule of natural justice that no
person should be condemned unheard.[lxxxi] The Court, however, should not issue a notice
mechanically. It has an impact on human dignity. The high value of human dignity and the worth
of the human must always be kept in mind.[lxxxii]

Personal Appearance
When a notice is issued to the judgment-debtor under sub-rule (1), he must appear in person. It is
not sufficient to appear through counsel.[lxxxiii] Where the judgment debtor appears in
obedience to such notice and the Court is satisfied that he is unable to pay the decrial amount, the
Court may reject the application for arrest.[lxxxiv] On the other hand, where the judgment-
debtor appears but fails to show cause to the satisfaction of the Court against arrest and
detention, or does not appear in obedience to the notice, the Court must make an order of
detention or issue a warrant of arrest of judgment-debtor.

Revision

The order directing issue of a warrant for arrest of the judgment-debtor in execution of the
money decree is not appealable and as such revision is maintainable.[lxxxv]

Order XXI, Rule 38

Warrant for arrest to direct judgment-debtor to be brought up- Every warrant for the arrest of
a judgment-debtor shall direct the officer entrusted with its execution to bring him before the
Court with all convenient speed, unless the amount which he has been ordered to pay, together
with the interest thereon and the cost (if any) to which he is liable, be sooner paid.

Warrant for arrest to direct judgment-debtor to be brought up

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.[lxxxvi]

Incorrect amount in warrant

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.[lxxxvii]

Order XXI, Rule 39

Subsistence allowance- (1) No judgment-debtor shall be arrested in execution of a decree unless
and until the decree-holder pays into the Court such sum as the Judge thinks sufficient for the
subsistence of the judgment-debtor from the time of his arrest until he can be brought before the
Court.

(2) Where a judgment-debtor is committed to the civil prison in execution of a decree, the Court
shall fix for his subsistence such monthly allowance as he may be entitled to according to the
scales fixed under Section 57 or where no such scales have been fixed, as it considers sufficient
with reference to the class to which he belongs.

(3) The monthly allowance fixed by the Court shall be made to the proper officer of the Court for
such portion of the current month as remains unexpired before the judgment-debtor is committed
to the civil prison and the subsequent payments (if any) shall be made to the officer-in-charge of
the civil prison.

(4) Sums disturbed by the decree-holder for the subsistence of the judgment-debtor in the civil
prison shall be deemed to be costs in the suit:

Provided that the judgment-debtor shall not be detained in the civil prison or arrested on
account of any sum so disturbed.

Subsistence money

The subsistence money must be paid in advance by the execution-creditor 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.

Order XXI, Rule 40:

Proceedings on appearance of the judgment-debtor in obedience to notice or after arrest- (1)
When a judgment-debtor appears before the Court in obedience to a notice issued under rule 37,
or is brought before the Court after being arrested in execution of decree for the payment of
money, the Court shall proceed to hear the decree-holder and take all such evidence as may be
produced by him in support of his application for execution, and shall then give the judgment-
debtor an opportunity of showing cause why he should not be committed to the civil prison.

(2) Pending the conclusion of the inquiry under sub-rule (1), the Court may, in its discretion,
order the judgment-debtor to be detained in the custody of an officer of the Court or release him
on his furnishing security to the satisfaction of the Court for his appearance when required.

(3) Upon the conclusion of the inquiry under the sub-rule (1), the Court may, subject to the
provisions of the Section 51 and to the other provisions of this Code, make an order for the
detention of the judgment-debtor in the civil prison and shall in that event cause him to be
arrested if he is not already under arrest:
Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the
Court may, before making the order of detention leave the judgment-debtor in the custody of an
officer of the Court for a specified period not exceeding fifteen days or release him on his
furnishing security to the Court for his appearance at the expiration of the specified period of the
decree be not sooner satisfied.

(4) A judgment-debtor released under this rule may be re-arrested.

(5) When the Court does not make an order an detention under sub-rule (3), it shall disallow the
application and, if the judgment-debtor is under arrest, direct his release.

The new rule and Section 51

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.[lxxxviii]

Inquiry under order 21, rule 40 is mandatory at least in contested cases, acting only on an
affidavit before the issue of warrant is irregular.[lxxxix]

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.[xc] The Court shall proceed to hear the decree-holder and to take all such evidence as may be
produced by him in support of his application for execution. It shall then give an opportunity to
the judgment-debtor of showing cause why he should not be committed to civil
imprisonment.[xci] 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. It will be noticed that the
matters which the Court may take into consideration under sub-rule 2 of the old rule 40 are now
incorporated in the proviso to section 51 and are not to be found in the new rule.

Scope of the rule

The use of word ‘then’ in the provision requiring the Court to give the judgment debtor an
opportunity of showing cause does not mean that the Court necessarily has to adjourn the case to
another date.[xcii]The privilege conferred by the proviso to section 51 of the Code on the
judgment-debtor cannot be waived at all.[xciii]
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.[xciv] 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.[xcv]

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.[xcvi]

Edited by Kudrat Agrawal

[i] C.K. Takwani, Civil Procedure, 5th edition (2006), p. 458.

[ii] Supra note 1, pp. 438-439.

[iii] Rule 30 of order XXI.

[iv] Rule 32 of order XXI.

[v] Ibid.

[vi] Section 56.

[vii] Section 135(1).

[viii] Section 135(2).

[ix] Section 135-A.

[x] Section 55(2).

[xi] Section 58(1-A)

[xii] Amulya Chandra v. Pashupati Nath, AIR 1951 Cal 48.

[xiii] Ibid.

[xiv] (1980) 2 SCC 360.

[xv] Ibid.

[xvi] Ranganatha Padayachi v. Mayavaram Financial Corporation, AIR 1974 Mad 1.

[xvii] Ibid.
[xviii] M.P Jain The Code of Civil Procedure, 2nd edition (2007), pp.206-207.

[xix] Order XXI, rule 32.

[xx] Woodroffe and Ameer Ali, Commentary on the Code of Civil Procedure, 1908, Vol. 2,
4th edition (2006) p. 766.

[xxi] Subhani v. Sadho Ram, 37 P.R. 1873.

[xxii] Chena Pemaji v. Chelabhi, I.L.R. 7 Bom 301.

[xxiii] Damodar v. Malhari, I.L.R. 7 Bom 106.

[xxiv] Panna Lal v. Kanhaiya Lal, I.L.R. 16 Cal 85.

[xxv] M.P. Jain, p. 207.

[xxvi] Arjun Singh v. Gaman, 75 P.R. 1905.

[xxvii] Ponnuswami v. Narayanaswami, 14 M.L.T. 304.

[xxviii] Alagappa Chetti v. Sarathambal, I.L.R. 25 Mad. 724.

[xxix] Kishan Chand v. Sassoon, 83 P.W.R. 1910

[xxx] Woodroffe and Ameer Ali, p. 767.

[xxxi] MVLA Vishwanathan v. Abdul Majid, AIR 1925 Rang 305.

[xxxii] Jagannathan v. Prabhakar Rao, (1966) 2 WR 306.

[xxxiii] Narasinha v. Rangachari, Air 1926 Mad 689.

[xxxiv] Kishore v. Netherlands Trading Society, AIR 1930 Cal 555.

[xxxv] Satyanarain Prasad v. Mahabir Prasad, AIR 1937 Pat 476.

[xxxvi] Abdul v. Mistri, AIR 1922 Bom 340.

[xxxvii] Channappa v. Yellappa, AIR 1931 Bom 444.

[xxxviii] Sankaranarayana v. Peranisiram, AIR 1942 Mad 101.

[xxxix] Makanji v. Bhukandas, AIR 1924 Bom 428.

[xl] Kali Ram v. Umrao Singh, AIR 1934 Lah 92.

[xli] Nageshar v. Gulzari Lal Narain Dasa, AIR 1933 All 382.

[xlii] Raghubir Singh v. Maharul Huque, AIR 1942 Pat 506.

[xliii] Makanji v. Bhukandas, AIR 1924 Bom 428.

[xliv] Raj Chander v. Shama Soondari, I.L.R. 4 Cal. 583.

[xlv] Channa Penji v. Ghelabhai, I.L.R. 7 Bom 301.

[xlvi] Seva Singh v. Dhaunkal, 69 P.R. (1895).

[xlvii] Guranditta v. Palasingh, 143 P.R. 1908.

[xlviii] Lillo Mal v. Harja Mal, 72 P.R. 1902.

[xlix] Supra note 41.

[l] 11 M.I.A 551.

[li] Order XXI, rule 32.

[lii] Order XXV, rule 1(3).

[liii] M.p. Jain, p. 208.