Arrest and Detention in Code of Civil Procedure

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1970
Arrest and Detention

You might have wondered for a moment after knowing that arrest and detention of a person can even take place in case of a civil suit with other modes of remedies such as damages in form of compensation or injunction either causing or restraining someone to do something or attachment of property with various types of interim and interpleader orders. But by virtue of Section 51 of the Code of Civil Procedure, it is peculiar to know that one of the modes of executing a decree is arrest and detention of the judgement-debtor in a civil person.

Before going into the procedure, rules powers and duties about the same, the first and foremost thing to understand is the meaning of the judgement debtor and judgement creditor. The person in favour of whom a judgement is passed is called a judgement creditor or decree holder whereas a person against whom a judgement is passed is called the judgement debtor. The content of the section 51(c) thereby implies that a judgement creditor may invoke for the execution of his decree, the arrest or detention of the judgement debtor and that too in civil sense that means no essence of criminality will be portrayed in exercise of this provision while the judgement debtor would only be detained in a civil prison and not a criminal one.

Section 58 further provides that up to how long a judgement debtor can be detained in a civil prison which provides that a person can be arrest up to two months where the decretal amount exceeds rupees five thousand and up to six weeks where the decretal amount exceeds up to two thousand rupees but does not exceed five thousand rupees.

There can be several instances where arrest and detention of a judgement debtor may be invoked on execution of a decree which ranges from non payment of money to non compliance of a contract. There can be several other instances depending upon the circumstances in each case. But quite stringent rules also exists which wherein the following classes of persons cannot be arrested or detained such as a women, or judicial officers or members of  legislative bodies or the parties, their pleaders, revenue agents and recognised agents and their witnesses acting in obedience to a summons, while going to, or attending or returning from the court or any persons or classes of persons, whose arrest according to the State Government, might be attended with danger or inconvenience to the public or lastly a judgement debtor, where the decretal amount does not exceed rupees two thousand as provided under Order XXI.

Coming to the procedural aspect of the arrest and detention, it is provided that as soon as a judgement debtor is arrested during execution of a decree, he must be presented before the court. Whereas there are provisions of making arrest in regard to entry and time which provides that no dwelling house may be entered after sunset and before sunrise and at the same time the outer door of the dwelling house not to be broken open unless such dwelling house is in the occupancy of the judgement-debtor and he refuses or prevents access thereto. At the same time, for the privacy and respect of customs, it is provided that where the room is in occupancy of a paradanashin woman who is not the judgement-debtor, reasonable time and facility should be given to her to withdraw therefrom.[1]

It is further stated that as soon as the amount of decretal  is revived, which anyways must not be lesser than twenty thousand rupees, the judgement debtor must be released while for his arrest, an affidavit stating the reason thereof must be stated along with compliance of other provisions as stated in the Code.

There is also a saving provision for the interests of judgement debtor which is provided under the umbrella of notice.[2] The procedure of the same stated that before making an arrest for non payment of money on execution of decree by the judgement creditor, a notice shall be given to the judgement debtor before issuance of warrant of arrest to inform him to show cause as why he should not be arrested for non execution of decree in a civil prison. The procedure while standing in consonance with ideals of human dignity also stands in consonance of natural justice as stated that the provision for issuing notice and affording opportunity to the judgement-debtor to show cause recognises a rule of natural justice that no  person shall be condemned unheard.[3]

After such a reason as to show cause is made by the person for protecting the interests of honest debtor incapable of paying dues for the reasons beyond their capabilities, the court may reject the application of arrest but in case of failure to show cause, the court may make an order for detention. In case wherein a money decree has not been paid by the judgement debtor even after thirty days since that order is made, the court has discretion on application by judgement creditor to require the judgement debtor to make an affidavit stating his assets and non compliance thereof would land him for up to three months in detention.[4]

While exercising the power of noticing, summoning and making order of arrest and detention by the executing court, it has an equal and important duty, being mandatory in nature, to record the reasons for its satisfaction as to the arrest and detention of the judgement debtor.  Therefore a judgement debtor can be released if he has paid the warrant amount or if the decree against him is fully satisfied or if the judgement creditor or decree holder requests for the same to be done so or if an omission is done on part of the judgement creditor or decree holder to pay subsistence allowance or on the grounds of illness of the judgement debtor in that civil prison. Henceforth these provisions provides for the arrest and detention of a judgement debtor as a civil person.


References

[1] Section 55

[2] Order XXI Rule 37, 40.

[3] Mayadhar Bhoi v. Moti Dibya AIR 1984 Ori 162

[4] Order XXI Rule 41