Code of Civil Procedure, 1908 (CPC)
Arrest and Detention in Civil Prison: Sections 55 to 59 CPC
Imprisoning a man for debt is a remedy the law tolerates only within narrow limits. The Code of Civil Procedure, 1908 permits arrest and detention as a mode of execution under Section 51(c), but surrounds it with conditions: a hearing before detention, exemptions for women and others, a subsistence allowance payable by the decree-holder, maximum periods of detention, and release on illness or payment. These notes cover the whole scheme, and the constitutional principle that inability to pay is not a ground for imprisonment.
Arrest in execution: the condition, the exemptions, the periods and the safeguards
1. The Condition: The Proviso to Section 51
§ Before any order of detention on a money decree The judgment-debtor must be given an opportunity of showing cause why he should not be committed to prison, and the court must be satisfied, for reasons recorded in writing, of one of three matters: (a) that he is likely to abscond or leave the local limits of the court's jurisdiction, with the object or effect of obstructing or delaying execution, or has since the institution of the suit dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to it; (b) that he has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part of it, and refuses or neglects to pay; or (c) that the decree is for a sum for which he was bound in a fiduciary capacity to account. |
📖 Jolly George Verghese v. Bank of Cochin, (1980) 2 SCC 360 A judgment-debtor was ordered to be detained in civil prison in execution of a money decree, on nothing more than his failure to pay. Krishna Iyer J, reading Section 51 with Article 11 of the International Covenant on Civil and Political Rights and Article 21 of the Constitution, held that no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. The simple default to discharge a decree is not enough: the court must be satisfied, on evidence, that the judgment-debtor has or has had the means to pay and has refused or neglected to do so, or that one of the other grounds in the proviso exists. Detention is a coercive process directed at a debtor who will not pay, not a punishment for one who cannot. Rule: the leading authority on the proviso to Section 51. Means plus refusal, not default, is the foundation of civil detention, and the requirement is a constitutional one as much as a statutory one. |
2. Who May Not Be Arrested
§ Section 56, CPC 1908 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. |
i. Women: Section 56. The prohibition is absolute in execution of a money decree. It does not extend to decrees of other kinds, such as a decree enforceable under Order XXI Rule 32, but for money decrees it admits of no exception.
ii. Judicial officers: Section 135(1). No judge, magistrate or other judicial officer is liable to arrest under civil process while going to, presiding in, or returning from his court.
iii. Parties, pleaders and witnesses: Section 135(2). Persons whose attendance the court requires are exempt from arrest under civil process while going to, attending or returning from the court.
iv. Legislators: Section 135A. Members of a legislature are exempt from arrest and detention under civil process during the continuance of a session, and for a defined period before and after it.
v. Section 55(2) and (4). No dwelling house may be entered after sunset or before sunrise for the purpose of making an arrest, no outer door may be broken unless the judgment-debtor is in occupancy and refuses access, and where a room is occupied by a woman who by custom does not appear in public, reasonable notice and facility to withdraw must be given before entry.
3. Arrest and Production: Section 55
i. Section 55(1): when and how. A judgment-debtor may be arrested in execution at any hour and on any day, and must be brought before the court as soon as practicable; the arrest is subject to the restrictions in the sub-sections that follow.
ii. Section 55(3): payment on arrest. Where the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, that officer must release him at once.
iii. Section 55(4): detention pending hearing. The officer must bring the judgment-debtor before the court with all convenient speed; the court then decides whether he is to be detained.
iv. Order XXI Rule 37: notice to show cause. Instead of issuing a warrant at once, the court may, in the case of a money decree, issue a notice calling on the judgment-debtor to show cause why he should not be committed to prison, and a warrant issues only if he fails to appear or the court is satisfied that he is likely to abscond.
v. Order XXI Rule 40: the hearing. On appearance, the court hears the decree-holder and takes evidence, and may make an order for detention, or release the judgment-debtor, or adjourn the hearing, and may in the meantime commit him to custody or release him on security.
4. Subsistence Allowance: Section 57 and Order XXI Rule 39
§ The decree-holder pays for the detention Section 57 empowers the State Government to fix scales of monthly allowances payable for the subsistence of judgment-debtors detained in civil prison. Order XXI Rule 39 requires the decree-holder to pay subsistence money into court before the arrest, sufficient for the judgment-debtor's subsistence from the arrest until he can be brought before the court, and thereafter to pay monthly in advance for so long as the detention continues. The sums so paid are added to the costs of the decree, and are recoverable from the judgment-debtor, but they must be paid up front by the decree-holder. Non-payment is a ground for release. Where the decree-holder fails to pay the allowance, the court shall order the judgment-debtor's release, since the Code will not allow a debtor to be kept in prison at the State's expense for a private creditor's benefit. |
5. Period of Detention: Section 58
Amount of the decree | Maximum period of detention | Provision |
|---|---|---|
Exceeding five thousand rupees | Three months | Section 58(1)(a) |
Exceeding two thousand rupees but not exceeding five thousand rupees | Six weeks | Section 58(1)(b) |
Two thousand rupees or less | No detention in civil prison at all | Proviso to Section 58(1) |
Two further propositions complete Section 58. A judgment-debtor released from detention is not discharged of his debt, but he shall not be liable to be re-arrested under the same decree, so detention is a remedy that may be used once. And the periods are maxima, not entitlements: the court may order a shorter period, and must release the debtor earlier where the grounds in Section 59 arise.
6. Release: Section 59 and Order XXI Rule 40
§ When the judgment-debtor is released Release follows in these situations: • On payment. Where the amount mentioned in the warrant is paid to the officer arresting him, or where the decree is otherwise satisfied: Section 55(3). • At the decree-holder's request. Where the decree-holder asks for his release, or fails to pay subsistence money: Order XXI Rule 39 and Section 58. • On serious illness. Section 59 empowers the court, at any time, to release a judgment-debtor on the ground of serious illness; where he is detained, the State Government or the officer in charge may also release him on the ground of the existence of an infectious or contagious disease, or on serious illness, subject to re-arrest where he recovers, so long as the period of detention is not exceeded. • On the expiry of the period. At the end of the maximum period under Section 58, with no liability to re-arrest on the same decree. • On the court's order after hearing. Under Order XXI Rule 40, where after hearing the decree-holder and taking evidence the court declines to order detention. |
7. Landmark Points
- Proviso to Section 51 with Jolly George Verghese v. Bank of Cochin, (1980) 2 SCC 360. Detention requires means and refusal, not mere default; the requirement is constitutional as well as statutory.
- Section 56. No woman shall be arrested or detained in civil prison in execution of a decree for the payment of money.
- Section 55(2) and (4). No entry into a dwelling after sunset or before sunrise, protection for a woman who by custom does not appear in public, and production before the court with all convenient speed.
- Section 57 with Order XXI Rule 39. Subsistence money is paid by the decree-holder in advance, is added to the costs, and non-payment is a ground for release.
- Section 58. Three months where the decree exceeds five thousand rupees, six weeks where it exceeds two thousand, and no detention at two thousand or less; release does not discharge the debt but bars re-arrest on the same decree.
- Section 59. Release at any time on the ground of serious illness.
8. Frequently Asked Questions
When can a judgment-debtor be arrested in execution of a money decree?
Only after he has been given an opportunity of showing cause, and where the court is satisfied for reasons recorded that he is likely to abscond or has dishonestly dealt with his property to obstruct execution, or that he has or has had the means to pay and refuses or neglects to do so, or that the decree is for a sum for which he was bound in a fiduciary capacity to account.
Can a woman be arrested in execution of a money decree?
No. Section 56 provides in absolute terms that the court shall not order the arrest or detention in civil prison of a woman in execution of a decree for the payment of money.
Is mere failure to pay a decree enough for detention?
No. Jolly George Verghese v. Bank of Cochin holds that no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation; the court must be satisfied on evidence of means and refusal, or of one of the other grounds in the proviso to Section 51.
Who pays the subsistence allowance of a detained judgment-debtor?
The decree-holder. Under Order XXI Rule 39 he must pay subsistence money into court before the arrest and monthly in advance thereafter, at the scale fixed by the State Government under Section 57. The sums are added to the costs, but failure to pay is a ground for the debtor's release.
What is the maximum period of detention in civil prison?
Three months where the decree is for a sum exceeding five thousand rupees, and six weeks where it exceeds two thousand but does not exceed five thousand. Where the decree is for two thousand rupees or less, there is no detention in civil prison at all.
Does release from detention discharge the debt?
No. Section 58(2) provides that a judgment-debtor released from detention shall not merely by reason of his release be discharged of his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained.
Can a judgment-debtor be released on the ground of illness?
Yes. Section 59 empowers the court at any time to release a judgment-debtor on the ground of serious illness, and provides for release by the State Government or the officer in charge where an infectious or contagious disease exists or the debtor is seriously ill, subject to re-arrest on recovery within the permitted period.
9. Related Topics in This CPC Series
- Modes of Execution under Section 51
- Attachment in Execution: Sections 60 to 64 and Order XXI
- Execution of Decrees: Sections 36 to 74 and Order XXI
- Questions Determined by the Executing Court under Section 47