ARREST AND DETENTION OF JUDGEMENT DEBTOR

INTRODUCTION:
In its widely sense, the expression ‘execution’ signifies the enforcement or giving effect to a
judgment or order of a court of justice.1 Stated simply, ‘execution’ means the process for
enforcing or giving effect to the judgment of the court.2

In the execution application the decree holder can insist that the decree be executed by arrest
and detention of the judgement debtor. If such a prayer is made in execution application, the
court will instead of issuing a warrant, issue a notice calling upon the judgment debtor to appear
before the court on a day to be specified in the notice and show cause why he should not be
committed to civil prison. Such a notice will not be necessary if the court is satisfied by affidavit
or otherwise that such notice will result in delay in the execution proceeding or the judgement
debtor is likely to abscond or leave local limits of the court.

If the notice is not complied warrant for arrest will be issued. Such warrant may direct that
unless the specified amount is paid the person should be brought before the court. The order for
arrest and detention should not be passed in mechanical manner. Mere failure to pay does not
justify arrest and detention of judgement debtor. In words of justice Krishna Iyer

“The provision needs to establish not mere omission to pay but an attitude of refusal on demand
and dishonest disowning of the obligation under the decree. Here the consideration of debtor’s
other pressing needs and strained circumstances will play prominently. We would by this
construction sauce law with justice..”3

Justice Krishna Iyer has expressed great sympathy for the judgement debtor in distress and has
remarked that in this land of Daridranarayan it is no crime and to recover debts by procedure by
putting one in prison is violative of Article 21 unless there is proof of minimum fairness of
willful failure to pay in spite of sufficient means.

The decision if applied in its true spirit virtually makes the provision for arrest a dead letter. The
application for arrest will generally be objected on such grounds and execution of decree will get
delayed further.

Another important provision connected with arrest is for payment of subsistence allowance. No
judgement debtor shall be arrested in execution of decree unless and until the decree holder pays
into court such sum as the Judge thinks sufficient for subsistence ofjudgement debtor from time
of his arrest until he is brought before the court. When such person is committed to Civil prison
the court will fix his monthly subsistence allowance and such amount will have to be paid by the
1
Halsbury’s law of England (4th edition ) vol. 17 at p.232
2
Overseas aviation engineering, re , (1962) 3 All ER 12.
3
JOLLY GEORGE V/s. BANK OF COCHIN, AIR 1980, SC 470. 615
decree holder in advance. The amount can be recovered as cost of execution. If the judgement
debtor appears before the court then the application for arrest for imprisonment will be heard and
appropriate orders will be passed.4

Whenever the court is convinced that the object of the judgement debtor is to defeat or delay the
execution of the decree with malafide intention then such powers to send judgement debtor to
civil prison should be exercised. Similarly if the judgement debtor undertook to deposit the
decreetal amount with interest and cost, the default will justify the arrest and imprisonment.5

A woman can not be arrested and detained in civil prison in execution of decree for payment of
money. Even in decree for restitution of conjugal rights a woman can not be arrested.

Substantive Laws
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 under this section, no dwelling 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 is which he has reason to believe the
judgment-debtor is to be found:

Provided, thirdly, that, if the room is in the actual 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 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, after allowing a reasonable time
for her to withdraw and giving her reasonable facility for withdrawing, any enter the room for
the purpose of making the 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.

4
RULE 39 ORDER 21 OF CPC.
5
JAGDiSHCHANDRA V/s. PUNJAB NATIONAL BANK AND OTHERS. 1st VOL. 1993 BC175.
(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 declared an
insolvent, and that he {Subs. by Act 3 of 1921, s.2, for "will be discharged".} [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 { Subs. by s.2, ibid., for "shall release".} [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.

Section 56- 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.

Section 57- 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.

Section 58- Detention and release

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

(a) where the decree is for the payment of a sum of money exceeding 612 [five thousand rupees],
for a period not exceeding three months, and]

[(b) 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 :]7

Provided that he shall be released from such detention before the expiration of the 8[said period
of detention]-

(i) on the amount mentioned in the warrant for his detention being paid to the officer in charge of
the civil prison, or
6
 Subs, by Act No. 104 of 1976, sec. 22, for “fifty rupees, for a period of six months, and” (w.e.f. 1-2-1977).
7
 Clause (b) subs. by Act 104 of 1976, sec. 22 (w.e.f. 1-2-1977) and again subs. by Act 46 of 1999, sec. 5 (w.e.f. 1-
7-2002)
8
. Subs. by Act 104 of 1976, sec. 22 for certain words (w.e.f. 1-2-1977)
(ii) on the decree against him being otherwise fully satisfied, or

(iii) on the request of the person on whose application he has been so detained, or

(iv) 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.

[(1A) 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 6[two thousand rupees.]]9

(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.

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 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 a 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 not in the aggregate exceed that prescribed by section 58.

PROCEDURE

9
6. Ins. by Act No. 104 of 1976, s. 22, (w.e.f. 1-2-1977).
Order 21 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
[shal]l, instead of issuing 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 :

2[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.

Order 21 Rule 40. Proceedings on appearance of 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 a 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 to 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 sub-rule (1) the Court may, subject to the
provisions of 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 satisfaction of the Court for his appearance at the
expiration of the specified period if 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 of detention under sub-rule (3), it shall disallow
the application and, if the judgment-debtor is under arrest, direct his release.]

Section 136 - Procedure where person to be arrested or property to be attached is

outside district

( 1 ) Where an application is made that any person shall be arrested or that any property shall
be attached under any provision of this Code not relating to the execution of decrees, and
such person resides or such property is situate outside the local limits of the jurisdiction of
the Court to which the application is made, the Court may, in its discretion, issue a warrant
of arrest or make an order of attachment, and send to the District Court within the local
limits of whose jurisdiction such person or property resides or is situate a copy of the
warrant or order, together with the probable amount of the cost of the arrest or attachment.

(2) The District Court shall, on receipt of such copy and amount, cause the arrest or
attachment to be made by its own officers, or by a Court subordinate to itself, and shall
inform the Court which issued or made such warrant or order of the arrest or attachment.

(3) The Court making an arrest under this section shall send the person arrested to the Court
by which the warrant of arrest was issued, unless he shows cause to the satisfaction of the
former Court why be should not be sent to the latter Court, or unless he furnishes sufficient
security for his appearance before the latter Court or for satisfying any decree that may be
passed against him by that Court, in either of which cases the Court making the arrest shall
release him

(4) Where a person to be arrested or movable property to be attached under this section is
within the local limits of the ordinary original civil jurisdiction of the High Court of
Judicature at Fort William in Bengal or at Madras or at Bombay,1[***] the copy of the
warrant of arrest or of the order of attachment, and the probable amount of the costs of the
arrest or attachment, shall be sent to the Court of Small Causes of Calcutta, Madras2[or
Bombay], as the case may be, and that Court, on receipt of the copy and amount, shall
proceed as if it were the District Court.