A decree is passed by the court under the Code of Civil Procedure (hereinafter referred to as
CPC) to decide the rights and liabilities of the persons in a matter of controversy. The person
in whose favour a decree is passed is called decree-holder and against whom the decree is
passed is judgement 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.
Nature and scope
The provision is remedial in nature. It seeks to provide a remedy to the decree-holder where a
suit has been decided in his favour. Such a remedy can be in the form of arrest and detention
of the judgement debtor if he fails to satisfy the decree passed against him.
The provision applies to every person against whom the decree is passed under the Code. When
a decree is passed in favour of a person, then that person has to move to the court for execution
of that decree. The court then according to the provisions of the Code can order for arrest and
detention of the judgement debtor.
When arrest and detention may be ordered?
Under Section 51(c) of CPC, it is given that when a decree-holder moves to the
executing a decree, the court can execute such decree by the arrest and
detention of the
The decree for arrest and detention may be passed in the following cases given
- Under Rule 30, a decree for the payment of money can be executed by the
and detention of the judgement debtor.
- Under Rule 31, where the decree is for a specific moveable party, it can
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
Who cannot be arrested?
There are certain classes of persons that are exempted from arrest and detention
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,
attended with danger or inconvenience to the public, under Section 55(2), and
- Where the decretal amount is less than two thousand rupees, under section
Procedure to be followed:
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
- Where the room is in occupancy of a woman who is not the judgement debtor
does not appear in public due to the customs, the officer shall give reasonable
and facility to her to withdraw therefrom.
- Where there is a decree for the payment of money, and the judgement debtor
the full decretal amount and the costs of the arrest to the arresting officer,
not be arrested.
Under Order XXI Rule 37, a person who is to be arrested shall be given a show-cause notice
to appear before the court and give reasons as to why he should not be committed to the civil
prison in execution of the decree. However, such notice is not necessary if the court is satisfied,
by affidavit or otherwise, that the effect of delaying the execution can lead to absconding of
the jurisdiction by the judgement debtor. If the judgement debtor does not appear before the
court after serving of the notice, if the decree-holder so requires, the court shall issue a warrant
to arrest such person.
The objective of serving notice is to prevent the arrest and detention of an honest debtor who
is not able to pay the debt due to some sufficient cause. The procedure of giving show cause
notice is the acknowledgement of the rule of natural justice that any person shall not be
Under Order XXI Rule 40, it is stated that if the person appears before the court after the
issuance of the notice as given under Rule 37, the court shall hear the decree-holder for the
execution of the decree and then give the chance to the judgement holder for showing as to
why he should not be arrested.3
Where a judgement debtor appears before the court and shows the reasonable cause for his
inability to pay the decretal amount and the court is satisfied that he is unable to pay, the court
may reject the application of the arrest. However, if the judgement debtor could not satisfy the
court against the order passed against him for arrest and detention, the court may commit him
to the civil prison, subject to the provisions of the code.
It has been held in the case of Mayadhar Bhoi v. Moti Dibya
, where a money decree has not
been paid by the judgement debtor within thirty days since that order was made, the court on
the application by the decree-holder require the judgement debtor to give an affidavit stating
the particulars of his assets, and if the person disobeys such order, he can be detained for three
Where an inquiry has been passed in accordance with sub rule 1 of Order XXI Rule 40, the
court may after the conclusion of the inquiry, subject to the provisions given in Section 51 and
to the other provisions of the code, order the person to be committed to the prison and shall
order for arrest of the person if he is not already arrested.
Power and duty of the court
Section 55 states that where a judgement debtor is arrested in execution of a decree for the
payment of money and is presented before the court, the court shall inform him to declare
himself as insolvent and he can be discharged if he has not done any act in bad faith regarding
the subject of the application and if he complies with the law of insolvency which is in force at
According to Order XXI Rule 39, a judgement debtor shall not be arrested for the execution
of the decree unless the decree-holder deposits the amount to the court, fixed by the judge, for
the subsistence of the judgement holder, from the time of the arrest until he is brought to the
court. And where such person is committed to the civil prison, the court shall fix the subsistence
as a monthly allowance according to Section 57, or where such scales are not fixed, the court
shall fix as it considers sufficient for that class of the person.
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 Varghese 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.
Recording of reasons
Section 51 says that an order for detaining a person shall not be passed unless,
after the person
has been provided with an opportunity of showing cause why he should not be
court for reasons recorded in writing must be satisfied:
- That the judgement debtor with the object of delaying the execution of the
likely to abscond of the jurisdiction of the court or has dishonestly
concealed or removed his property, or has done any other act done in bad faith,
- That the judgement debtor has the means to pay the amount or a substantial
it and refuses to pay the same, or
- That the decretal amount has to be paid on account of the fiduciary
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.4
Release of judgment-debtorUnder Section 58, every person who has been detained in civil prison shall be
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
- Where the person on whose application the person was detained requests