Code of Civil Procedure, 1908 (CPC)
Arrest Before Judgment and Arrest in Execution Distinguished
The Code allows a civil court to deprive a person of his liberty in two situations, and they are separated by the decree. Arrest before judgment under Section 94(a) and Order XXXVIII Rules 1 to 4 of the Code of Civil Procedure, 1908 happens while nothing has been decided, and its purpose is to secure his appearance. Arrest in execution under Section 51(c), Sections 55 to 59 and Order XXI Rules 37 to 40 happens after a decree, and its purpose is to compel payment. Both are hedged with safeguards, and the safeguards differ. These notes set them out.
The two arrests, their grounds, and the ceilings on detention
1. Arrest Before Judgment: Order XXXVIII Rule 1
§ Order XXXVIII Rule 1, CPC 1908 (in substance) Where at any stage of a suit, other than a suit of the nature referred to in Section 16, clauses (a) to (d), the Court is satisfied by affidavit or otherwise — (a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court, or to obstruct or delay the execution of any decree that may be passed against him — (i) has absconded or left the local limits of the jurisdiction of the Court, or (ii) is about to abscond or leave those limits, or (iii) has disposed of or removed from those limits his property or any part thereof; or (b) that the defendant is about to leave India under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against him, the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for his appearance. |
§ The safeguards • The proviso to Rule 1. The defendant shall not be arrested if he pays to the officer the sum specified in the warrant, which is to be sufficient to answer the claim, and such sum is held by the court until the suit is disposed of. • Rule 2. Where he fails to show cause, the court may order him to deposit money or other property sufficient to answer the claim, or to furnish security for his appearance, and the surety may discharge himself under sub-rule (3). • Rule 4: the ceiling. Where the defendant fails to comply, the court may commit him to civil prison until the decision of the suit or, where a decree is passed, until its execution has been satisfied, but the detention shall not exceed six months, or six weeks where the claim does not exceed fifty rupees. • Rule 3. Where security is furnished or the required deposit made, or where the plaintiff's suit is dismissed, the defendant is released. |
2. Arrest in Execution: Section 51(c) and Its Proviso
§ The proviso to Section 51, CPC 1908 (in substance) Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied — (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree, (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after 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 his property; or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects, or has refused or neglected, to pay the same; or (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. |
i. Order XXI Rule 37: the notice. Before a warrant issues on an application for arrest, the court shall ordinarily issue a notice to show cause, except where it is satisfied that the judgment-debtor is likely to abscond or leave the jurisdiction, in which case it may issue a warrant at once.
ii. Order XXI Rule 40: the inquiry. On appearance, the court shall hear the decree-holder and take all evidence tendered, and give the judgment-debtor an opportunity of showing cause. It may also release him on his furnishing security for appearance.
iii. Section 58: the ceiling. Detention shall not exceed three months where the decree is for more than five thousand rupees, and six weeks where it is for more than two thousand but not more than five thousand; and no detention is ordered where the decree is for two thousand rupees or less.
iv. Section 58(2): no discharge of the debt. 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.
v. Section 59: release on ground of illness, and Section 55 governing the manner of arrest, including the exemptions.
3. The Two Compared
Basis | Arrest before judgment, O. XXXVIII | Arrest in execution, s. 51(c) and O. XXI |
|---|---|---|
When | During the suit, before any decree | After a decree, in execution |
Purpose | To secure the defendant's APPEARANCE and prevent the decree being defeated | To COMPEL PAYMENT of a decree already passed |
What must be shown | An intent to delay the plaintiff, avoid process or obstruct execution, and an act such as absconding, leaving the jurisdiction or removing property | The proviso to Section 51: likelihood of absconding, dishonest transfer of property, or means to pay coupled with refusal or neglect |
The immediate demand | SECURITY for his appearance, or a deposit sufficient to answer the claim | SATISFACTION of the decree |
Notice first | He is brought before the court to show cause why he should not furnish security | Order XXI Rule 37: ordinarily a notice to show cause, unless he is likely to abscond |
The ceiling on detention | Order XXXVIII Rule 4: six months, or six weeks where the claim does not exceed fifty rupees | Section 58: three months above five thousand rupees, six weeks between two and five thousand, none at or below two thousand |
Release | Rule 3: on furnishing security, on making the deposit, or on the dismissal of the suit | Section 58(2) and Section 59: on payment, on illness, and on the expiry of the period |
Effect of release | The suit continues | Section 58(2): the debt is not discharged, but he cannot be re-arrested under that decree |
Women | Not expressly excluded, though the power is used with corresponding caution | Section 56: a woman shall NOT be arrested or detained in execution of a money decree |
4. The Common Safeguard: Mere Poverty Is Not Enough
§ Why the proviso to Section 51 matters Civil detention is not imprisonment for debt. A judgment-debtor who simply cannot pay is not to be detained; detention is directed at dishonesty or refusal, not at poverty. That is why limb (b) is drafted as it is. It requires that he has or has had the means to pay and refuses or neglects to do so. Inability, honestly established, defeats the application. And why the procedure is careful. Reasons must be recorded in writing, a notice to show cause is ordinarily required under Order XXI Rule 37, and Rule 40 requires an inquiry with evidence before an order is made. The same thinking runs through Order XXXVIII. The defendant is not arrested if he pays the sum specified in the warrant, and he is released on furnishing security; the object is security, not punishment. |
5. Landmark Points
- Order XXXVIII Rule 1. Arrest before judgment requires an intent to delay, avoid process or obstruct execution, coupled with one of the acts stated.
- Order XXXVIII Rule 4. Detention not exceeding six months, or six weeks where the claim does not exceed fifty rupees.
- The proviso to Section 51. Detention in execution only on recorded reasons, and only on the three grounds stated.
- Order XXI Rules 37 and 40. An ordinary requirement of notice to show cause, and an inquiry with evidence before an order of detention.
- Section 58. Three months above five thousand rupees, six weeks between two and five thousand, and no detention at or below two thousand.
- Section 58(2). Release does not discharge the debt, but bars re-arrest under that decree.
- Section 56. A woman shall not be arrested or detained in execution of a money decree.
6. Frequently Asked Questions
What is the difference in purpose between the two arrests?
Arrest before judgment secures the defendant's appearance and prevents a decree that may be passed from being defeated. Arrest in execution compels payment of a decree already passed. One looks forward to a possible decree, the other enforces an existing one.
What must be shown for arrest before judgment?
An intent to delay the plaintiff, avoid the process of the court, or obstruct or delay execution of a decree that may be passed, coupled with an act such as absconding, leaving or being about to leave the jurisdiction, or disposing of or removing property; or that the defendant is about to leave India in circumstances affording reasonable probability of obstruction.
Can a judgment-debtor be detained simply because he has not paid?
No. The proviso to Section 51 requires the court to be satisfied, for reasons recorded, of a likelihood of absconding, a dishonest transfer of property, means to pay coupled with refusal or neglect, or a fiduciary liability. Honest inability to pay defeats the application.
What are the limits on detention?
Under Order XXXVIII Rule 4, six months, or six weeks where the claim does not exceed fifty rupees. Under Section 58, three months where the decree is for more than five thousand rupees, six weeks where it is for more than two thousand but not more than five thousand, and no detention where it is for two thousand or less.
Does release from detention wipe out the debt?
No. Section 58(2) provides that a judgment-debtor released 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 woman be arrested in execution of a money decree?
No. Section 56 provides that 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.
Is notice required before an arrest in execution?
Ordinarily yes. Order XXI Rule 37 requires the court, instead of issuing a warrant at once, to issue a notice calling on the judgment-debtor to show cause, except where it is satisfied that he is likely to abscond or leave the jurisdiction, in which case a warrant may issue immediately.
7. Related Topics in This CPC Series
- Order XXXVIII: Arrest and Attachment Before Judgment
- Arrest and Detention in Execution: Sections 55 to 59
- Attachment Before Judgment and in Execution Distinguished
- Supplemental Proceedings: Sections 94 and 95