Arrest and Detention-1.pptx

Code of civil procedure code,1908

1. “Arrest and Detention”

2. INTRODUCTION A decree is passed by the court under the Code of Civil Procedure to decide the rights and liabilities of the persons in a matter of controversy. The person in whose favor a decree is passed is called decree-holder and against whom the decree is passed is judgment debtor. There are various ways under civil law by which a decree can be passed. One such way is “ arrest and detention ”. The law relating to arrest and detention in the CPC has been dealt with under Section 51 to 59 and Rules 30 to 40 of Order XXI .

3. WHEN ARREST AND DETENTION MAY BE ORDERED? Under Section 51(c) of CPC, it is given that when a decree-holder moves to the court for executing a decree, the court can execute such decree by the arrest and detention of the judgement debtor The decree for arrest and detention may be passed in the following cases given under Order XXI:
Under Rule 30, a decree for the payment of money can be executed by the arrest and detention of the judgement debtor.
Under Rule 31, where the decree is for a specific moveable party, it can be executed by the arrest and detention of the judgement debtor
Under Rule 32, where the decree is for specific performance of the contract or an injunction, the court can execute the decree by arrest and detention of the judgement debtor.

4. WHO CANNOT BE ARRESTED? There are certain classes of persons that are exempted from arrest and detention under the various provisions of CPC. Such persons include: Women, as per Section 56 Judicial officers, as per Section 135(1) Where a matter is pending, their pleaders, mukhtars , revenue-agents, and witnesses acting in obedience to a summons, under Section 135(2) Members of legislatures, as per Section 135A Classes of persons, whose arrest according to the State Government, might be attended with danger or inconvenience to the public, under Section 55(2) Where the decretal amount is less than two thousand rupees, under section 58(1A)

5. PROCEDURE The procedure to be followed for arrest and detention is provided under Section 55. It says that a judgement debtor can be arrested at any hour or any day during the execution of a decree, and after such arrest, the person must be presented before the court. However, there are certain restrictions regarding entry and time. They are as follows: That no dwelling house shall be entered after sunset and before sunrise. That no outer door shall be broken in order to enter the house unless such a house is the occupancy of the judgement debtor, in case he refuses to prevent access thereto.

6. Where the room is in occupancy of a woman who is not the judgement debtor and does not appear in public due to the customs, the officer shall give reasonable time and facility to her to withdraw therefrom. Where there is a decree for the payment of money, and the judgement debtor pays the full decretal amount and the costs of the arrest to the arresting officer, he shall not be arrested .

7. PERIOD OF DETENTION Section 58 specifies the period for which a person can be detained, which is decided according to the amount of the decree which has been passed against him by the court, and where he has failed to pay that decretal amount. It says that a person cannot be detained for more than three months if the decretal amount exceeds five thousand rupees and, for an amount between two thousand to five thousand rupees, such detention cannot exceed six weeks. If the amount does not exceed two thousand rupees, no order for detention of the judgement debtor can be made. 

8. RELEASE OF JUDGMENT-DEBTOR Under Section 58, every person who has been detained in civil prison shall be released before the said period of detention on the following grounds: Where the decree against him has been fully satisfied, Where the amount mentioned in the warrant for his detention has been paid to the police officer, Where the person on whose application the person was detained requests so, or Where the person on whose application such detention was made omits to pay subsistence allowance .

9. Section 59 provides that a warrant issued by a court for the arrest of the person can be cancelled anytime if there is some serious illness to the judgement -debtor. And if such arrest has already been made, and it appears to the court that the person is not in a fit state of health to be in prison, may order for his release. Where the judgement debtor has been committed to prison, he may be released: By the State Government, if there exists some infectious or contagious disease, or By the court which granted the execution; Or any court which is superior to the above court, on the grounds of serious illness.

10. RE-ARREST OF JUDGMENT-DEBTOR Any person that has been released on grounds of serious illness in accordance with Section 59 can be arrested again but the period of detention in aggregate should not be more than that prescribed by Section 58. Any person whose period of arrest has been completed as given under Section 58 cannot be arrested again under the decree in execution of which he was detained in the civil prison. Any person that has been released in accordance with Order XXI Rule 40 can be re-arrested.

11. CONCLUSION In the case of Amulya Chandra v. Pashupati Nath , the court held that if the judgement debtor despite having means to pay the decretal amount refuses to pay, he can be detained. However, it must be checked whether such a person has means to pay and refuses to pay the amount in bad faith. These provisions were widely explained in the case of Jolly George Verghese v. Bank of Cochin , where Justice Krishna Iyer stated that a simple default is not enough, there must be an element of bad faith beyond mere indifference to paying; some deliberate refusal or the present means to pay a decree or a substantial part of it.