Arrest under Civil Procedure Code (CPC), 1908

13 March, 2024

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Introduction

To decide the rights and liabilities of an individual in a controversial matter, a decree is passed by the court under the Civil Procedure Code (CPC), 1908. CPC provides various modes of executing a decree, one such mode is the arrest and detention of the judgment debtor in civil custody. The person in whose favor or against whom a decree is passed is known as the decree holder and judgment debtor respectively. In this article, we will discuss when arrest and detention may be ordered, exceptions, and the procedure to be followed for arrest and detention.

When Arrest and Detention may be ordered

According to Section 51(c) of the CPC, 1908, the court can enforce execution on receiving the application of the decree-holder for executing a decree by the arrest and detention of the judgment debtor. The mode of execution of a decree for arrest and detention is listed under Order XXI, that are discussed as follows:

Rule 30: A decree for the payment of money can be executed by the arrest and detention in the civil prison of the judgment debtor, by the attachment and sale of his property, or by both.
Rule 31: Where the decree is for any specific movable property then it can be executed by the arrest and detention of the judgment debtor. It states “Where the decree is for any specific movable, or for any share in a specific movable, it may be executed by the seizure, if practicable, of the movable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the detention in the civil prison of the judgment-debtor, or by the attachment of his property, or by both.”
Rule 32: Where the decree is for any specific performance of a contract or for restitution of conjugal rights or for an injunction then it can be executed by the arrest and detention of the judgment debtor.

Who cannot be arrested? [Exceptions]

Under the various provisions of the Civil Procedure Code, certain classes of people are exempted from arrest and detention. These classes are listed as follows:

Section 55(2): Any person or class of persons whose arrest as per the State Government, might be attended with danger or inconvenience to the public should not be liable to arrest and detention in execution of a decree.
Section 58(1A): Detention of the judgment-debtor in civil prison in execution of a decree should not be made in case the total amount of the decree is less than 20,000 rupees.
Section 56: Prohibition of arrest or detention of women in the execution of a decree for money.
Section 135(1): Judge, magistrate, or other Judicial Officer are exempted from arrest under civil process.
Section 135(2): Pending matter before a tribunal, the parties, their pleaders, mukhtars, revenge agents and recognized agents, and their witnesses acting in obedience to summons should be exempted from arrest.
Section 135A: Members of legislative bodies are exempted from arrest and detention under civil process.

Procedure

Under Section 55 of the CPC of 1908, the procedure followed for the arrest and detention of a judgment debtor is discussed. As per this Section, a judgment debtor can be arrested in the execution of a decree at any hour and on any day. As soon as the judgment debtor is arrested, he/she should be presented before the court. There are certain restrictions too regarding the entry and time for arresting a person which are mentioned below:

Not to enter a dwelling house after sunset and before sunrise.
No outer door of a dwelling house should be broken while entering unless such dwelling house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto.
If the room is in the actual occupancy of a woman who is not the judgment debtor and does not appear in public due to the customs of the country then the authorized officer should give notice and reasonable time to her to withdraw. After allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, the authorized officer to make the arrest can enter the room to do so.
In case, 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 full amount of the decree and costs of the arrest to the officer arresting him then the officer should not arrest him.

Notice

Notice plays an important role in the overall procedure of arrest in civil cases. A person who is to be arrested should be given a show cause notice to appear before the court to give reasons why he/she should not be committed to civil prison in the execution of the decree. If the Judgment debtor does not show up before the court despite the show cause notice then the court can issue a warrant for his arrest, as mentioned under Rule 37 of Order XXI. Moreover, as mentioned under Rule 40 of the Order XXI, “When a judgment-debtor appears before the Court in obedience to a notice issued under rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, 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 then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison.”