Arrest and Detention (Section 55-59)

Section 55: 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 under 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 authorised 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 actual 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 authorised to make the 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 the 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 declared 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 execution of the decree.


Section 56: Prohibition of arrest or detention of women in execution of decree for money.—

Notwithstanding 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.


Section 57: 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.


Section 58: Detention and release.—

(1) Every person detained in the civil prison in execution of a decree shall be so detained,—

(a) where the decree is for the payment of a sum of money exceeding five thousand rupees, for a period not exceeding three months, and,

(b) 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 detention—

(i) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil prison, or

(ii) on the decree against him being otherwise fully satisfied, or

(iii) on the request of the person on whose application he has been so detained, or

(iv) 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 re-arrested under the decree in execution of which he was detained in the civil prison.


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 a 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 rearrested, but the period of his detention in the civil prison shall not in the aggregate exceed that prescribed by Section 58.


IMPORTANT CASE LAWS

1. Understanding the concept of Arrest under Section 55

State of Punjab v. Ajaib Singh, AIR 1953 SC 10: “…..The court may under Section 55 read with Order 21 Rule 38, issue a warrant for the arrest of the judgment-debtor in execution of the decree. Form 13 sets out the terms of such a warrant. The warrant recites the decree and the failure of the judgment-debtor to pay the decretal amount to the decree-holder and directs the bailiff of the court to arrest the defaulting judgment-debtor, unless he pays up the decretal amount with costs and to bring him before the court with all convenient speed. The point to be noted is that, as in the case of a warrant of arrest issued by a court under the Code of Criminal Procedure, a warrant of arrest issued by a court under the Code of Civil Procedure quite plainly discloses the reason for the arrest in that it sets out an accusation of default, apprehended or actual, and that the person to be arrested is made acquainted with the reasons for his arrest before he is actually arrested.”


2. Maximum detention period under Section 58

Samiran Sen v. Arpita Sen, AIR 2009 Cal 229 : “12. From a bare perusal of the above provision of law it is clear that in no circumstances a person can be detained in a civil prison for execution of a decree beyond a period of three months. It is, therefore, not understood as to how the petitioner has been kept confined to a civil prison by the learned Court below for over a year. In my opinion, the period of detention in a civil prison beyond three months, if directed by a civil Court, is beyond the scope of the relevant provision of the Code of Civil Procedure and is therefore wholly without jurisdiction and more importantly, the same amounts to violation of Art. 21 of the Constitution of India, which reads as follows :

“21. Protection of life and personal liberty :— No person shall be deprived of his life or personal liberty except according to procedure established by law.”

(Emphasis supplied)

13. The learned Court below, as it appears, completely lost sight of the fact that Section 58 of the Code of Civil Procedure also provides a safeguard to the decree holder which is apparent from sub-section (2) of Section 58. The said sub-section (2) inter alia provides that release of the judgment-debtor from detention shall not merely by reason of his release be construed as discharge of his debt. The said sub-section, however, provides that he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.

14. Keeping this aspect of the matter in mind, I have no hesitation to conclude that the petitioner has been kept in wrongful confinement in a civil prison for over a year, beyond the maximum period of three months, as prescribed under law, as stated above…..


3. No order can be passed on an anticipation of Arrest

 Saravanan v. Annamalai, 1995 SCC OnLine Mad 501 : (1996) 1 CTC 21: “…….Section 59, C.P.C., would apply at any time after a warrant for the arrest of the judgment-debtor has been issued. Section 59 is the provision for release on the ground of illness. But in the present case, no such warrant was issued to arrest. In anticipation of the arrest warrant the execution petition cannot be dismissed under Section 59 C.P.C. Further, before ordering arrest, the Court should also examine the means of the judgment-debtor to pay the decree debt. If the judgment-debtor has means and evading the payment of the decree amount, then arrest can be ordered…….”


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