PROJECT REPORT

ON

ARREST AND DETENTION

UNDER CIVIL LAW

SUBMITTED BY-

SHIVA YADAV
BA/LLB (HONOURS)
7TH SEMESTER,87/13

Arrest And Detention Under Civil Law

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 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 project 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 decreeholder 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. inJolly 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 debtors 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 judgmentdebtor. 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 judgmentdebtor 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].

Courts 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 rearrest 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 judgmentdebtor 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 judgmentdebtor 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[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 moneyNotwithstanding 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.
Scope 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 costs 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 defendants 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 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 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 detained1. 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 detention1. 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 officerin-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 rearrested 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-debtors detention, but
provides that the debt is not discharged thereby; the creditor has got a right to proceed
against the debtors 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 10 th 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 judgmentdebtor 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 judgmentdebtor 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-holders 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 is1. 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 judgmentdebtor 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 decreeholder 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 judgmentdebtor.

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 judgmentdebtor 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]

[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, 4thedition (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.
[liv] Mulla, Commentary on Code of Civil Procedure, 2nd edition (2011), Vol. 4, p. 323.
[lv] Woodroffe, p. 773.
[lvi] Dodla Narayana v. Veneti Reddemma, AIR 1990 AP 147.
[lvii] Gopal v. Pandya, AIR 1987 Guj. 160.
[lviii] Ghanshamdas v. Joharimall, I.L.R. 7 Bom 431.
[lix] Damodar v. Malhari, I.L.R 7 Bom 106.

[lx] Matal Chamar v. Phagu Rai, AIR 1978 Pat 143.

[lxi] Chango v. Kaluram, 4 Bom. H.C.A.C.I.
[lxii] Rajendra v. Mohun, (1896) 23 Cal. 128.
[lxiii] H. Raham v. Ram sahai, (1904) 26 All 317.
[lxiv] Kesar Singh v. Karam Chand, AIR 1937 Lah 253.
[lxv] Judah v. Secretary of State for India, (1886) 12 Cal. 445.
[lxvi] Shamji v. Poonja, (1902) 26 Bom 652.
[lxvii] Martin v. Lawrence, (1879) 4 Cal 655.
[lxviii] Santosh Kumar Mode v. Adaita Ballav Satpathy, AIR 1992 Ori. 29.
[lxix] Mohd. Sadiq v. Lala Chunni Lal, AIR 1934 Lah 80.
[lxx] Bohuru Mal v. Jagan Nath, AIR 1993 Lah. 307.
[lxxi] Dip Chand v. Naushad, 14 O.C. 36.
[lxxii] Wahengbam Menjor Singh v. Adweta Debota, AIR 1973 Gau. 84.
[lxxiii] P.G. Ranaganatha Padayachi v. Mayavaram Financial Corporation Ltd., AIR 1974
Mad 1.
[lxxiv] Parkash Chand v. Punjab National Bank, AIR 1999 P.&M. 79.
[lxxv] Dip Chand v. Naushad, 14 O.C. 36.
[lxxvi] Iyyam Perumal v. Chinna Gounder, (1984) 1 M.L.J. 195.
[lxxvii] Chinappa v. Ladasaheb, 19 I.C. 394.
[lxxviii] Mayadhar Bhoi alias Das v. Moti Dibbya, (1984) 58 C.L.T. 7.
[lxxix] K. Harikrishna v. Dr. L. Raghunatha Rao, AIR 2004 AP 518.

[lxxx] Jogendra v. Ramnandan, AIR 1968 Pat 218.

[lxxxi] Mayadhar v. Moti, AIR 1984 Ori. 162.
[lxxxii] Jolly George Verghese v. Bank of Cochin, AIR 1980 SC 470.
[lxxxiii] Madhusudan v. Trimbak, 1960 ILR Bom 523.
[lxxxiv] Jolly George Verghese v. Bank of Cochin, AIR 1980 SC 470.
[lxxxv] Wahengbam Menjor Singh v. Adweta Debota, AIR 1973 Gau. 84.
[lxxxvi] Sriyapushpa Ratnam v. Perumal Nadar, (1984) 1 MLJ 189.
[lxxxvii] Thangal v. State of Kerala, AIR 1961 Ker. 331.
[lxxxviii] Harpal Singh v. Lala Hira Lal, AIR 1955 All 402.
[lxxxix] Joseph K Mathai v. Lucknow Kurian, AIR 1979 Ker. 235.
[xc] Shamsunder & Co. v. Manu, AIR 1959 Mys. 79.
[xci] Subash Chand v. Central Bank of India, AIR 1999 MP 195.
[xcii] Mohammad Ali Khan v. Mumtaz Jahan Begam, AIR 1964 All. 344.
[xciii] Jogendra Missir v. Ramnandan Singh, AIR 1968 Pat. 218.
[xciv] State of Kerala v. Devassy, AIR 1962 Ker 258.
[xcv] M.H. Aquill v. Union of India, AIR 1985 Knt. 120.
[xcvi] Dharani Mohan Ray v. Kshitipati Pay, AIR 1928 Cal 62.