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CPC (Arrest and detention)
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CODE OF CIVIL PROCEDURE
ARREST AND DETENTION
INTRODUCTION:
One of the modes of executing a decree 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 special circumstances, cannot compel him to invoke a particular mode of execution. Sections 55 to 59 and Rules 30 to 41 deal with arrest and detention of the judgment-debtor in civil prison.
NATURE AND SCOPE
The Code enumerates various modes of execution. One of such modes is arrest and detention of the judgment-debtor in a civil prison. The substantive provisions deal with rights and liabilities of the decree-holder and judgment-debtor and procedural provisions lay down conditions thereof.
WHEN ARREST AND DETENTION MAY BE ORDERED?Where the decree is for payment of money, it can be executed by arrest and detention of the judgment-debtor. Likewise, in case of a decree for specific performance of a contract or for injunction, a judgment-debtor can be arrested and detained? Again, where a decree is against Corporation, it can be executed with the leave of the court by detention in civil prison of its directors or other officers
WHO CANNOT BE ARRESTED?:
SECTIONS 56, 58, 135, 135-AThe following classes of persons cannot be arrested or detained in civil prison:(i) a woman;
(ii) judicial officers, while going to, presiding in, or returning fromtheir courts
(iii) the parties, their pleaders, mukhtars, revenue agents and recog-nised agents and their witnesses acting in obedience to a summons, while going to, or attending or returning from the court(to) members of legislative bodies;(w) any person or class of persons, whose arrest, according to the State Government, might be attended with danger or inconvenience to the public;
(vi) a judgment-debtor, where the decretal amount does not exceedrupees two thousand ( Sec 58)
PROCEDURE
A judgment-debtor may be arrested at any time and on any day in execution of a decree. After his arrest, he must be brought before the court as soon as practicable. For the purpose of making arrest, no dwelling house may be entered after sunset or before sunrise. Further, no outer door of a dwelling house may be broken open unless such dwelling house is in the occupancy of the judgment-debtor and he refuses or prevents access thereto.Again, where the ream is in the actual occupancy of a pardanashin woman who is not the judgement debtor , reasonable time and facility should be given to her to withdraw therefrom.
No order of detention of the judgment-debtor shall be made where the decretal amount does not exceed rupees two thousand. No judgment-debtor may be arrested unless and until the decree-holder pays into court the subsistence allowance as fixed by the court.
In an application for the arrest and detention of the judgment-debtor, the decree-holder must state or must file an affidavit stating the grounds on which arrest is sought. The burden is very heavy on the decree-holder to prove that the circumstances specified in the Proviso to Section 51 exist.
The court must record reasons for the committal of the judgment-debtor to civil prison. In absence of reasons, the order is liable to be set aside. Again, a decree for money cannot be executed by arrest and detention where the judgment-debtor is a woman, or a minor, or a legal representative of a deceased judgment-debtor.
NOTICE: ORDER 21 RULES 37, 40
Where the decree is for payment of money and the application is made for arrest and detention of the judgment-debtor, the court shall, instead of issuing a warrant for arrest, issue a notice calling upon the judgment-debtor to appear and show cause why he should not be committed to civil prison in execution of the decree. The purpose of issuing notice is to afford protection to honest debtors incapable of paying dues for reasons beyond their control.The provision for issuing notice and affording opportunity to the judgment-debtor to show cause recognizes a rule of natural justice that no person should be condemned unheard. It has an impact on human dignity. An order of arrest or detention without issuing notice or affording an opportunity to show cause is bad in law.The court however, should not issue a notice mechanically. "The high value of human dignity and the worth of the human person enshrined in Article 21 read with Articles 14 and 19" must always be kept in mind.
Where the judgment-debtor appears before the court in obedience to such notice, and if the court is satisfied that he is unable to pay the decretal amount, the court may reject the application for arrest. On the other hand, where the judgment-debtor appears but fails to show cause to the satisfaction of the court against the arrest and detention, the court may, subject to the provisions of the Code, make an order of detention.
The primary object of Rule 40 read with Rule 37 of Order 21 and Section 51 of the Code is to protect honest but indigent and poor judgment-debtors, who have no sufficient means to pay decretal dues.
Where the judgment-debtor does not appear in obedience to the notice, the court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor. 32Where a money decree has remained unsatisfied for a period of thirty days, the court may, on the application of the decree-holder, require the judgment-debtor to make an affidavit stating the particulars of his assets. The person disobeying the order may be detained up to three months.
OPPORTUNITY TO JUDGMENT-DEBTOR OF SATISFYING DECREE
Proviso to sub-rule (3) of Rule to affords judgment-debtor an opportunity of satisfying the decree.
POWER AND DUTY OF COURT
The provision relating to arrest and detention of the judgment-debtor protects and safeguards the interests of the decree holder. If the judgement-debtor has means to pay and still he refuses or neglects to honorhis obligations, he can be sent to civil prison. 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 mala fide or bad faith, "not mere omission to pay but an attitude of refusal on demand verging on disowning of the obligation under the decree".The above principles have been succinctly and appropriately explained by Krishna lyer, J. in Jolly George Varghese v. Bank of Cochin 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 emphasizes 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 considerations 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.
His Lordships 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 Section 51, CPC and the lethal blow of Article 21 cannot strike down the provision, as now interpreted.
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.4 Such reasons should be recorded every time and in every proceeding in which the judgment-debtor is ordered to be detained.
PERIOD OF DETENTION: SECTION 58
The period of detention of the judgment-debtor in civil prison shall be(a) up to three months, where the decretal amount exceeds rupees five thousand; and (b) up to six weeks, where the decretal amount exceeds rupees two thousand but does not exceed rupees five thousand.Where the decretal amount does not exceed rupees two thousand no detention can be ordered.
RELEASE OF JUDGMENT DEBTOR:
SECTIONS 58-59
A judgment-debtor may be released in the following cases:
(i) On the amount mentioned in the warrant being paid; or
(ii) On the decree against him being otherwise fully satisfied; or
(iii) On the request of the decree-holder; or
(iv) On the omission by the decree-holder to pay subsistence allowance; (such release, however, does not discharge the judgment-debtor from his debt, but he cannot be rearrested on the same ground);
(v) On the ground of illness.
12. RE-ARREST OF JUDGMENT-DEBTOR
Normally, a judgment-debtor once released, cannot be re-arrested in execution of the same decree. But if the judgment-debtor is released because of a mistake of the jail authorities, he can be re-arrested.
Similarly, where the judgment-debtor could not be sent to jail due to non-payment of subsistence allowance by the decree-holder, his re-arrest is not unlawful. Again, release of the judgment-debtor on the ground of illness does not debar his re-arrest. The total period of actual detention, however, cannot exceed the maximum prescribed in the Code.
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