One of the modes of executing decrees is arrest and detention in civil prison of the Judgement-debtor. Sees. 55 to 59 and Rules 37 to 41 of Order 21 deal with arrest and detention of the judgement-debtor in civil prison.
Procedure:
A judgement-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.
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ADVERTISEMENTS:
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 accompany of the judgment-debtor and he refuses to prevents access thereto.
Again, where the room 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 there from.
No order to detention of the judgement-debtor shall be made where the decretal amount does not exceed rupees five hundred. No judgement-debtor may be arrested unless and until the decree holder pays into Court the subsistence allowance as fixed by the Court. Where the judgement-debtor pays the decretal amount and costs of arrest to the officer, he should be released at once.
Notice:
Where the decree is payment of money and the application is made for arrest and detention of the judgement-debtor, the Court shall, instead of issuing a warrant for arrest, issue a notice called upon the judgement-debtor to appear and show cause why he should not be committed to civil prison in execution of the decree. The underlying object of “issuing notice is to” afford protection to honest debtors incapable of paying dues for reasons beyond their control.
ADVERTISEMENTS:
Where the judgement-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 judgement-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.
Where the judgement-debtor does not appear in obedience to the notice under Rule 37, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the Judgement-debtor.
Where a money decree has remained unsatisfied for a period of thirty days, the Court may, on the application of the decree holder, require the judgement-debtor to make an affidavit stating the particulars of his assets. The person disobeying the order may be detained upto three months.
Who cannot be arrested?
ADVERTISEMENTS:
The following classes of persons cannot be arrested or detained in civil prison,
(i) A woman,
(ii) Judicial officers, while going to preside in or returning from the Courts,
(iii) The parties, their pleaders, mukhtars, revenue agents and recognised agents and their witnesses acting in obedience to a summons, while going to, or attending, or returning from the Court,
(iv) Members of legislative bodies; and
(v) Any person or class of persons, whose arrest according to the State Government might be attended with danger or inconvenience to the public.
Period of Detention:
The period of detention of the judgement-debtor in the civil prison shall be (a) upto three months, where the decretal amount exceeds rupees one thousand; and (b) upto six weeks, where the decretal amount exceeds rupees five hundred but does not exceed rupees one thousand.
Release of Judgment-Debtor:
A judgement-debtor may be released from detention in the following circumstances-
(a) Premature release,
(b) Release on the ground of illness.
(a) Premature Release:
A Judgement-debtor shall be released before the expiry of the period of detention on the following grounds:
(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 judgement-debtor from his debt, but he cannot re-arrested on the same ground.
(b) Release on the Ground of Illness:
The Judgement-debtor may also be released by the Court or by the Government on the ground of illness.
The provisions of Section 59 are based on purely humanitarian grounds. If the judgement-debtor is suffering from serious illness, the Court should release him so as to escape from the moral responsibility in case anything happens to him.
Being a beneficial provision, Section 59 should be construed liberally and humanitarian impulse should not be lost sight of when applying it to the facts of the case.
