4/17/25, 4:16 PM Arrest and Detention under CPC
Arrest and Detention under CPC
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Civil Law
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13-Aug-2024
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Civil Procedure Code, 1908 (CPC)
Introduction
There are several provisions in the Civil Procedure Code, 1908 (CPC) that provide for
arrest and detention.
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Provisions in CPC Relating to Arrest and Detention
Section 51 of CPC
Section 51 provides that the Court may on application of decree holder order
execution of the decree by following ways:
By delivery of any property specifically decreed.
By attachment and sale or by sale without attachment of any property.
By arrest and detention in prison.
By appointing a receiver.
In such other manner as the nature of the relief granted may require.
Proviso to Section 51 provides 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.
That the judgment-debtor, with the object or effect of obstructing or delaying the
execution of the decree-
Is likely to abscond or leave the local limits of the jurisdiction of the Court,
or
Has, after the institution of the suit in which the decree was passed,
dishonestly transferred, concealed, or removed any part of his property, or
committed any other act of bad faith in relation to his property, or
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
That the decree is for a sum for which the judgment-debtor was bound in a
fiduciary capacity to account.
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Section 55 of CPC
Section 55 of CPC provides for execution of decree by arrest or detention.
Section 55 (1) provides that a judgment-debtor may be arrested in execution of a
decree at any hour and on any day, and shall, as soon as practicable, be brought
before the Court, and his detention may be in the civil prison of the district in
which the Court ordering the detention is situate, or, where such civil prison does
not afford suitable accommodation, in any other place which the State
Government may appoint for the detention of persons ordered by the Courts of
such district to be detained.
There are four provisos attached to Section 55 (1):
Firstly, that, for the purpose of making an arrest under this section, no
dwelling-house shall be entered after sunset and before sunrise;
Secondly, that no outer door of a dwelling-house shall be broken open
unless such dwelling-house is in the occupancy of the judgment-debtor and
he refuses or in any way prevents access thereto, but when the officer
authorized to make the arrest has duly gained access to any dwelling-
house, he may break open the door of any room in which he has reason to
believe the judgment-debtor is to be found;
Thirdly, that, if the room is in the actual occupancy of a woman who is not
the judgment-debtor and who according to the customs of the country does
not appear in public, the officer authorized to make the arrest shall give
notice to her that she is at liberty to withdraw, and, after allowing a
reasonable time for her to withdraw and giving her reasonable facility for
withdrawing, may enter the room for the purpose of making the arrest;
Fourthly, that, where 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 amount of the decree and the costs of the arrest to the officer
arresting him, such officer shall at once release him.
Section 55 (2) provides that the State Government may, by notification in the
Official Gazette, declare that any person or class of persons whose arrest might
be attended with danger or inconvenience to the public shall not be liable to
arrest in execution of a decree otherwise than in accordance with such procedure
as may be prescribed by the State Government in this behalf.
Section 55 (3) provides that where a judgment-debtor is arrested in execution of
a decree for the payment of money and brought before the Court, the Court shall
inform him that he may apply to be declared an insolvent, and that he may be
discharged, if he has not committed any act of bad faith regarding the subject of
the application and if he complies with provisions of the law of insolvency for the
time being in force.
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Section 55 (4) provides that where a judgment-debtor express his intention to
apply to be declared an insolvent and furnishes security, to the satisfaction of the
Court, that he will within one month so apply, and that he will appear, when called
upon, in any proceeding upon the application or upon the decree in execution of
which he was arrested, the Court may release him from arrest, and, if he fails so
to apply and to appear, the Court may either direct the security to be realized or
commit him to the civil prison in execution of the decree.
Section 56 of CPC
Section 56 of CPC provides that the Court shall not order the arrest and
detention in civil prison of a woman in execution of a decree for payment of
money.
Section 58 of CPC
Section 58 of CPC provides for provisions relating to detention and release.
Section 58 (1) provides that a person shall be detained in civil prison for
following duration:
Amount of Decree Period of Detention
Decree amount exceeding Rs. 5000. Not exceeding 3 months.
Decree amount between Rs. 2000 to Rs. 5000. Not exceeding 6 weeks.
Section 58 (1A) provides that where the amount of decree does not exceed 2,000 no
order of detention shall be made.
Section 58 (2) provides that a judgment-debtor released from detention under this
section -
Shall not merely by reason of his release be discharged from his debt.
He shall not be liable to be re-arrested under the decree in execution of which he
was detained in the civil prison.
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Section 59 of CPC
Section 59 of CPC provides for release on ground of illness.
Section 59 (1) provides that at any time after a warrant for the arrest of a
judgment-debtor has been issued the Court may cancel it on the ground of his
serious illness.
Section 59 (2) provides that where a judgment-debtor has been arrested, the
Court may release him if, in its opinion, he is not in a fit state of health to be
detained in the civil prison.
Section 59 (3) provides that where a judgment-debtor has been committed to the
civil prison, he may be released therefrom—
By the State Government, on the ground of the existence of any infectious
or contagious disease,
By the committing Court, or any Court to which that Court is subordinate, on
the ground of his suffering from any serious illness.
Section 59 (4) provides that a judgment-debtor released under this section may
be re-arrested, but the period of his detention in civil prison shall not in the
aggregate exceed that prescribed by section 58.
Provisions in CPC Relating to Exemption from Arrest and Detention
Section 135 of CPC
Section 135 of CPC provides for exemption from arrest under civil process.
Section 135 (1) provides that no Judge, Magistrate or judicial officer shall be
liable to arrest:
While going to
Presiding in or
Returning from Court
Section 135 (2) provides that where any matter is pending before the Tribunal
having jurisdiction or believing it has jurisdiction the parties thereto, their
pleaders, mukhtars, revenue-agents and recognized agents, and their witnesses
acting in obedience to a summons, shall be exempt from arrest under civil
process other than process issued by such tribunal for contempt of Court while
going to or attending such tribunal for the purpose of such matter, and while
returning from such tribunal.
Section 135 (3) provides that nothing in sub-section (2) shall enable a judgment-
debtor to claim exemption from arrest under an order for immediate execution or
where such judgment-debtor attends to show cause why he should not be
committed to prison in execution of a decree.
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Section 135 A of CPC
Section 135 A of CPC provides for exemption of members of Legislative bodies
from arrest or detention under civil process.
Section 135 A (1) provides the following shall be exempted from arrest:
If he is a member of
Either House of Parliament
The Legislative Assembly or Legislative Council of State
Legislative Assembly of Union Territory
During the continuance of any meeting of such House of Parliament
or, as the case may be, of the Legislative Assembly or the Legislative
Council.
If he is a member of any committee of
Either House of Parliament
The Legislative Assembly of a State or Union Territory
The Legislative Council of a State
During the continuance of any meeting of such committee
If he is a member of
Either House of Parliament, or
A Legislative Assembly or Legislative Council of a State having both
the houses
During the continuance of a joint sitting, meeting, conference or joint
committee of the Houses of Parliament or, Houses of the State
Legislature, as the case may be, and during the forty days before and
after such meeting, sitting or conference
Arrest under Order XXXVIII and Order XXXIX
Order XXXVIII: Arrest Before Judgment:
Order XXXVIII Rule 4 of CPC provides that where the defendant fails to comply
with any order under Rule 2 or Rule 3 the Court may commit him to civil prison
until the decision of the suit or, where a decree is passed against the defendant,
until the decree has been satisfied:
Proviso 1 provides that no person shall be detained in prison under this rule in
any case for a longer period than six months, nor for a longer period than six
weeks when the amount or value of the subject-matter of the suit does not
exceed fifty rupees:
Proviso 2 provides that no person shall be detained in prison after he has
complied with the order.
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Order XXXIX: Temporary Injunction
Order XXXIX Rule 2A of CPC provides for Consequence in case of breach or
disobedience of injunction.
The consequence of breach or disobedience of injunction is that the person guilty
may be detained in civil prison for a term not exceeding 3 months.
Order XXI of CPC
Order XXI Rule 37 of CPC provides that where application for execution of
decree of payment of decree by arrest instead of issuing the warrant of arrest the
Court may issue a notice calling upon him to appear before the Court and show
cause why he should not be arrested. Where no appearance has been made in
obedience of notice the Court may issue a warrant for arrest of the judgment
debtor.
Order XXI Rule 38 of CPC provides that every warrant for arrest shall direct the
officer entrusted to bring before the court the person liable with all convenient
speed.
Order XXI Rule 40 of CPC provides for proceedings on appearance of judgment
debtor in obedience to notice or after arrest.
Clause (1) provides that when a person is brought or appears before Court on
notice or arrest, the Court shall proceed to hear him and take all evidence in
support of application for execution and shall give the judgment debtor
opportunity of showing cause why he should not be committed to civil prison.
Clause (2) provides that pending the conclusion of the inquiry under sub-rule (1)
the Court may, in its discretion, order the judgment-debtor to be detained in the
custody of an officer of the Court or release him on his furnishing security to the
satisfaction of the Court for his appearance when required.
Clause (3) provides that upon the conclusion of the inquiry under sub-rule (1) the
Court may, subject to the provisions of section 51 and to the other provisions of
the Code, make an order for the detention of the judgment-debtor in the civil
prison and shall in that event cause him to be arrested if he is not already under
arrest.
Provided that in order to give the judgment-debtor an opportunity of satisfying the
decree, the Court may, before making the order of detention, leave the judgment-
debtor in the custody of an officer of the Court for a specified period not
exceeding fifteen days or release him on his furnishing security to the satisfaction
of the Court for his appearance at the expiration of the specified period if the
decree be not sooner satisfied.
Clause (4) provides that a judgment-debtor released under this rule may be re-
arrested.
Clause (5) provides when the Court does not make an order of detention under
sub-rule (3), it shall disallow the application and, if the judgment-debtor is under
arrest, direct his release.
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Conclusion
CPC provides for several provisions with respect to arrest and detention of a person. There
are indeed several limitations attached to it. The provisions in CPC itself provide for such
limitations.
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