Arrest and Detention (Section 51, Order XXI Rules 37-40)

Conditions for Arrest and Detention

After a decree is passed by a Civil Court, the decree-holder (the person in whose favour the decree is passed) is entitled to execute that decree to obtain the relief granted by the Court. Section 51 of the Code of Civil Procedure, 1908 (CPC) lists the various modes of execution of a decree. One of these modes is by arrest and detention in the civil prison of the judgment-debtor (the person against whom the decree is passed).

However, arrest and detention in civil prison is a stringent mode of execution, especially for decrees for payment of money. Section 51, through its proviso, places significant restrictions on the power of the Court to order the arrest and detention of a judgment-debtor, particularly when the decree is for the payment of money. The underlying principle, especially after amendments and judicial pronouncements (like the landmark case of *Jolly George Varghese v. Bank of Cochin*), is that a person should not be imprisoned merely for inability to pay a debt, but only for dishonest or contumacious conduct.

When Arrest and Detention can be Ordered (Conditions under Proviso to Section 51):

The proviso to Section 51 states that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court is satisfied that:

Judgement debtor showing inability to pay

This is actually the *opposite* of a ground for arrest for a money decree. The proviso implies that if the judgment-debtor shows a genuine inability to pay despite having means, they *should not* be arrested. The focus is on whether the debtor has the means but refuses to pay, or if their inability is due to dishonest conduct. Specifically, clause (b) of the proviso relates to dishonest transfer or concealment of property despite having the means to pay.

Intentional obstruction

The proviso covers situations where the judgment-debtor has obstructed or delayed the execution of the decree by designedly obstructing or placing obstacles in the execution (this is implied within the conduct-based grounds like refusal to disclose property or dishonest transfer, or generally acting to frustrate the decree). This is not an independent clause but is often linked to actions like refusal to disclose property or transferring property to defeat execution.

Fraudulent transfer of property

The proviso includes specific circumstances relating to dishonest conduct concerning property:

**(b)** that the judgment-debtor has, with the object or effect of obstructing or delaying the execution of the decree, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or

This means if the debtor has dishonestly dealt with their property *after* the suit was filed with the intention to prevent the decree-holder from recovering the amount, they can be arrested. This aims to penalize dishonest conduct, not mere indebtedness.

Other specific conditions under Section 51 Proviso:

Apart from fraudulent transfer, Section 51 Proviso lists other grounds related to the debtor's conduct or the nature of the decree:

**(a)** that the judgment-debtor, with the object of obstructing or delaying the execution of the decree, has, after the institution of the suit in which the decree was passed, absconded or left the local limits of the jurisdiction of the Court, in order to avoid arrest in execution; or
**(c)** that the judgment-debtor has, since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects to pay the same; or
**(d)** that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account; or
**(e)** that the decree is for maintenance.

Conditions (a), (b), and (c) relate to the debtor's conduct (absconding, fraudulent dealing with property, having means but refusing to pay). Conditions (d) and (e) relate to the nature of the debt itself (breach of trust, maintenance), where imprisonment is seen as more justifiable.

Crucially, for a money decree, the Court *must* be satisfied that one of these conditions is met. Mere default in payment is not sufficient.

Procedure for Arrest and Detention

Order XXI of the CPC lays down the detailed procedure for execution, including arrest and detention. Rules 37 to 40 specifically deal with the procedure for arresting and committing a judgment-debtor to civil prison.

Application for Execution (Order XXI, Rule 10 & 11)

The decree-holder files an application for execution in the Court that passed the decree or to which it has been transferred. If the mode of execution sought is arrest and detention, the application must specifically state this and provide the necessary particulars as required by Order XXI, Rule 11.

Notice to show cause (Order XXI, Rule 37)

When an application is made for the arrest and detention of a judgment-debtor for the execution of a decree for the payment of money, the Court shall, instead of issuing a warrant in the first instance, issue a notice to the judgment-debtor requiring him to appear before the Court on a specified date and show cause why he should not be committed to prison.

This notice is a mandatory requirement for a money decree unless the Court is satisfied, by affidavit or otherwise, that the judgment-debtor:

Is likely to abscond or leave the local limits of the Court's jurisdiction with the object of delaying or obstructing execution; or
Has, after the institution of the suit, dishonestly transferred, concealed, or removed his property, or committed any other act of bad faith.

In these exceptional cases of apprehended dishonest conduct or past dishonest conduct relating to property, the Court may, for reasons recorded in writing, issue a warrant of arrest *without* issuing a show-cause notice first (Order XXI, Rule 37 Proviso). However, even if arrested without notice, the debtor must be brought before the Court promptly (Order XXI, Rule 38).

Inquiry into Means and Conduct (Order XXI, Rule 40)

If the judgment-debtor appears in response to the show-cause notice (or is brought before the Court under a warrant), 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 give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison. Crucially, where the decree is for payment of money, the Court must inquire into the allegations made under the proviso to Section 51 (i.e., whether the debtor has means but refuses to pay, has fraudulently transferred property, etc.). This inquiry under Rule 40 is a critical stage to determine if the conditions under Section 51's proviso are met.

Pending the inquiry, the Court may order the judgment-debtor to be detained in custody, or release him on furnishing security, or release him without security.

Civil Imprisonment (Order XXI, Rule 40, 58)

If the Court is satisfied after the inquiry under Rule 40 that one or more of the conditions specified in the proviso to Section 51 are met, it may make an order for the detention of the judgment-debtor in the civil prison. The order must specify the period of detention.

Period of Detention (Section 58):

Section 58 specifies the maximum period for which a judgment-debtor can be detained in civil prison in execution of a money decree:

Where the decree is for the payment of a sum of money exceeding five thousand rupees, the detention shall not be for a longer period than three months.
Where the decree is for the payment of a sum of money exceeding two thousand rupees but not exceeding five thousand rupees, the detention shall not be for a longer period than six weeks.
Where the decree is for the payment of a sum of money not exceeding two thousand rupees, the judgment-debtor cannot be arrested or detained at all (Section 58(1A)).

The judgment-debtor is discharged from prison before the expiry of the maximum period upon the amount mentioned in the warrant being paid, or if the decree is otherwise satisfied or set aside, or upon the request of the decree-holder, or if the decree-holder fails to pay the subsistence allowance (Section 58(2)).

Subsistence Allowance (Order XXI, Rule 39):

The decree-holder applying for the arrest and detention must deposit in Court such sum as is fixed by the State Government (or the Court) as subsistence allowance for the maintenance of the judgment-debtor in prison. This amount must be paid periodically in advance. If the decree-holder fails to pay the subsistence allowance, the judgment-debtor is entitled to be released from prison.

Example 1. Mr. Ajay owes Ms. Bina Rs. 6,00,000/- as per a money decree. Ms. Bina files an execution application seeking Mr. Ajay's arrest. What is the first step the Court should take?

Answer:

Since the decree is for the payment of money (Rs. 6,00,000/-), according to Order XXI, Rule 37, the Court shall ordinarily issue a notice to Mr. Ajay (the judgment-debtor) requiring him to appear before the Court and show cause why he should not be committed to civil prison. The Court would only issue a warrant of arrest in the first instance without notice if it is satisfied, based on an affidavit from Ms. Bina, that Mr. Ajay is likely to abscond or has already engaged in dishonest dealing with his property to defeat the decree.

Example 2. After the inquiry under Order XXI, Rule 40, the Court finds that Mr. Charan, the judgment-debtor in a money decree for Rs. 75,000/-, has sufficient means to pay the decree amount but is deliberately refusing to pay. The Court orders his detention in civil prison. What is the maximum period for which Mr. Charan can be detained?

Answer:

The decree amount is Rs. 75,000/-, which is a sum exceeding five thousand rupees. According to Section 58(1)(a) of the CPC, where the decree is for a sum exceeding five thousand rupees, the detention in civil prison shall not be for a longer period than three months. Therefore, Mr. Charan can be detained in civil prison for a maximum period of three months.

Prohibition of Arrest in Certain Cases

While arrest and detention is a mode of execution, the CPC provides certain specific prohibitions and exemptions from arrest.

Section 56: Prohibition of Arrest of Women

Section 56 of the CPC provides an absolute prohibition regarding the arrest of women in execution of a money decree:

"Notwithstanding anything in this Part, a woman shall not be arrested or detained in execution of a decree for the payment of money."

This is a significant protection for women. Regardless of the amount of the money decree or the conduct of the woman judgment-debtor, she cannot be arrested or detained in civil prison for the execution of such a decree.

Scope of Section 56:

This prohibition applies only to decrees for the payment of money.
It applies only to women judgment-debtors.
It is an absolute prohibition.

It does not apply to decrees other than money decrees (e.g., a decree for specific performance or injunction, though arrest for such decrees is also subject to other rules and limitations). It also doesn't exempt women from other modes of execution like attachment and sale of property.

Other relevant points regarding restrictions on arrest:

Small Value Decrees (Section 58(1A)): As mentioned earlier, a judgment-debtor cannot be arrested or detained in execution of a decree for the payment of a sum of money not exceeding two thousand rupees.
Duration Limit (Section 58): Even if arrested, the period of detention is limited as per the value of the decree (maximum three months for decrees above Rs. 5,000/-, six weeks for decrees between Rs. 2,001 and Rs. 5,000/-).
Release on Payment or Decree Holder's Request (Section 58(2)): The judgment-debtor must be released if the decree is paid or satisfied, if the decree-holder requests release, or if the decree-holder fails to pay the subsistence allowance. Such release on these grounds does not discharge the judgment-debtor from the decree itself, but only from detention.
Privileged Persons: Certain categories of persons may have temporary immunity from arrest while attending court or specific public duties (e.g., Section 135, 135A). However, these are usually temporary privileges, not absolute prohibitions in execution like Section 56.

Example 3. Ms. Deepika is a judgment-debtor in a money decree for Rs. 10,00,000/-. The decree-holder, Mr. Chopra, applies for execution by her arrest and detention, alleging that she has sufficient means but refuses to pay. Can the Court order the arrest of Ms. Deepika?

Answer:

No, the Court cannot order the arrest of Ms. Deepika. Section 56 of the CPC absolutely prohibits the arrest or detention of a woman in execution of a decree for the payment of money, regardless of the amount or her conduct. While other modes of execution, such as attachment and sale of her property, may be available to Mr. Chopra, arrest and detention are specifically barred in the case of a woman judgment-debtor for a money decree.