Vidhi Agarwal
If a person commits wrong, he may be detained or arrested even in a civil matter which is defined in code of civil procedure. This code makes two types of arrest (a) with warrant (b) without warrant (a) (sec.46). Police officers, magistrates, and any private individual may arrest a person.
When in the vicinity of a private citizen, the non-bailable offense and cognizable offense are kept, the person has the right to arrest the offender (sec.43). In the case of a non-cognizable crime, the police may arrest the suspect with a warrant and without a warrant in the case of a cognizable crime (sec.41). When the arrest is carried out by the judge, there is no need for a warrant (sec.44).
Further, the Code of Civil Procedure lays down different methods of implementing a decree. One such procedure is the arrest and imprisonment in a civil prison of the judgment-debtor. The decree-holder has the choice of selecting a style of execution for his decree and, usually, in the non-existence of any exceptional circumstances, a court of law will not force him to invoke a specific mode of execution.
Parts 51 to 59 and Rules 30 to 41 of Order XXI address the arrest and imprisonment in civil prison of a verdict debtor. The fundamental regulations deal with the privileges and obligations of the decree-holder and verdict debtor and administrative provisions set down the parameters thereof.
Within the Code of Civil Procedure, a decree is issued by the court to rule on the rights and obligations of individuals in a matter of dispute. The individual on whose behalf a decree is passed is called the decree-holder and the judgment debtor is against whom the decree is passed.
Under civil law, there are different means by which a decree may be passed. “Arrest and detention” is one such way. Under Sections 51 to 59 and Rules 30 to 40 of Order XXI, the legislation relating to arrest and detention inside the CPC has been dealt with.
According to Section 51(c) of the CPC, when a decree-holder moves to the court to execute a decree, the court may execute such a decree by arresting and detaining the debtor of the judgment.
In the following cases referred to in Order XXI, the decree for arrest and detention may be delivered:
- Rule 30, a decree for the payment of money may be executed by the arrest and detention of the debtor of the judgment.
- Rule 31, where the decree is for a single moving party, the arrest and detention of the judgment debtor can be enforced.
- Rule 32, where the decree is for the particular execution of the contract or an order, the court may enforce the decree by arresting and detaining the judgment debtor.
The procedure and ways in which arrest and detention can take place is elaborated in Section 55 of CPC, which is going to be discussed subsequently.
AS PER THE CODE OF CIVIL PROCEDURE-
Section 55 states: 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 and 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.
EXPLAINATIONS
Where the decree is for the settlement of money the arrest and imprisonment of the judgment debtor can be executed. Similarly, a judgment debtor can be arrested and imprisoned in the case of a decree for the particular execution of a contract or for an injunction. Again, if a decree is against a company, its directors or other officials can be executed by imprisonment in civil prison with the leave of the court.
The clause is remedial in nature. It serves to supply the decree-holder with a remedy where a suit has been resolved in his favour. If he fails to execute the decree passed against him, such a remedy may be in the form of arrest and imprisonment of the judgment debtor.
The clause extends to every person under the Code against whom the decree is passed. If a decision is passed in favour of a citizen, the person must travel to the court for the decree to be executed. The court will then order the arrest and imprisonment of the judgment debtor under the terms of the Code.
The purpose of this section is to avoid the scurrilous forms of resistance to execution proceedings that constantly hinder the execution of their decrees by decree-holders. But this chapter regulates his case and sets down some restrictions before a judgment-debtor can be arrested.
Pursuant to Section 55, the protocol to be followed for arrest and detention is given. It says that during the execution of a decree, a judgment debtor may be arrested at any hour or any day, and after such arrest, the person must be brought before the court. There are, however, some limitations with regard to entry and time. They are as follows:
- That after sunset and before sunrise, no dwelling house must be reached.
- That no outer door can be broken in order to enter the house unless such a house is occupied by the debtor of the judgment, in the event that it declines to prevent access to it.
- Where the room is occupied by a woman who is not the debtor of the judgment and does not show in public because of customs duties, the officer shall grant her sufficient time and space to retreat from the room.
- Where a decree calling for the settlement of money is issued and the judgment debtor pays the full amount of the decree and the detention costs to the arresting officer, he shall not be arrested.
PEOPLE WHO ARE EXEMPTED FROM ARREST
- Members of legislative bodies
- Woman
- Judicial officers
- Any person or classes of persons, whose arrest, might cause danger / inconvenience to the public.
- When the amount does not go beyond two thousand rupees, then the judgment debtor cannot be arrested
- The parties, their pleaders, revenue agents and recognised agents and their witness cannot be arrested
POINTS TO REMEMBER
The Code of Civil Procedure does not prohibit the detention of a judgment-debtor for a second time on account of the same order under which he was released at the request of the creditor of the judgment. A judgment-creditor may enforce his decree against the individual or property of the judgment-debtor, or both. It is else, nevertheless, where the decree is just against the estate.
For the default in the payment of each instalment, a judgment-debtor cannot be prosecuted and imprisoned separately. An individual is not exempted from arrest in the execution of decree, merely because his property is in the possession of the receiver in insolvency.
Hence, to conclude, an individual can be arrested in a civil case as well. Under Section 55-59, 135, 135-A, Order XXI, Rules 37-40, within the Code of Civil Procedure, the law on arrest and detention. Compared to a court case, where the time of which he was sent to prison is less. In intermediate or final phase, arrest can be made.
The object of arrest and detention is to grant relief to a decree holder and to send the judgment debtor to a civil prison if, despite having the means to pay the same, he does not pay the decree sum. It also helps honest debtors, however, where a fair cause supports their failure to pay.
In order to ensure fair justice, the court needs to grant the debtors the right to be heard.
*Arrest and detention (lawctopus.com)
*Arrest and detention(blog.ipleaders.in)
*Can a person be arrested in civil case(lawtimesjournal.in)