KEY TAKE AWAYS
- The CPC regulates the processes and procedures that should be followed in courts during civil cases.
- In a case the person in whose favour the judgement is held is known as the ‘Decree-holder’ while the opposite person is the ‘Judgement Debtor’.
- The provision under this code are remedial in nature. They seek to supply a remedy to the decree-holder where a suit has been decided in his/her favour.
- There are many opportunities given to judgement debtor to prove his/her intention for not complying with the decree. If the judgement debtor isn't a wilful defaulter, then he/she might not be arrested and given a chance to rectify his mistake. Therefore, these provisions aren't stringent.
CPC – The Civil Procedure Code, 1980
This code regulates the processes and procedures that should be followed in courts during civil cases. The code can be categorised into two main categories; the first consists of 158 sections while the second consists of the First Schedule, which includes a total of 51 Orders and Rules.
There is a clear difference between these sections and rules.
The sections mentioned in this code provide various provisions with reference to the general principles of jurisdiction, whereas, the orders and rules state the method in which civil proceedings should be governed in India.
In a case the person in whose favour the judgement is held is known as the ‘Decree-holder’ while the opposite person is the ‘Judgement Debtor’.
Section 2 (2) of the CPC, 1908 defines a decree as the formal expression of an adjudication which conclusively make up the rights of the parties with regards to all or any of the matter that is under controversy in a suit.
There are three types of decrees:
- Preliminary decree
- Final decree
- Partly preliminary and partly final
Decrees are often preliminary in nature if, the court adjudicates certain essential elements before choosing the remainder. Final decree is when the suit is disposed and every one the controversies within the matter are adjudicated. Decree deals with the substantive legal rights of the parties, and order which is defined under Section 2(14) of CPC with procedural legal rights of the parties and order is usually final.
This code lays down multiple methods in which the decree is executed.
The provision is remedial in nature. It seeks to supply a remedy to the decree-holder where a suit has been decided in his/her favour. Such a remedy is often within the sort of arrest and detention of the judgement debtor if he/she fails to satisfy the decree passed against him.
The provision applies to each person against whom the decree is passed under the Code. When a decree is passed in favour of an individual, then that person has got to move to the court for execution of that decree. The court then consistent with the provisions of the Code can order for arrest and detention of the judgement debtor.
ARREST AND DETENTION
Section 51(c) of CPC, deals with the situations in which a decree-holder moves to the court for executing a decree, the court then can execute such decree by the arrest and detention of the judgement debtor.
The decree for arrest and detention could also be passed within the following cases given under Order XXI:
- Under Rule 30, a decree for the payment of cash is often executed by the arrest and detention of the judgement debtor.
- Under Rule 31, where the decree is for a selected moveable party, it is often executed by the arrest and detention of the judgement debtor.
- Under Rule 32, where the decree is for performance of the contract or an injunction, the court can execute the decree by arrest and detention of the judgement debtor.
PROCEDURE OF AN ARRREST
A judgement debtor could also be arrested in the execution of any decree on any day at any hour with certain conditions which are provided in Section 55 of CPC.
The conditions are as follows:
- He/she must be bought before the court as soon as possible, and his/her detention could also be within the civil prison of the district.
- There should be no homestead that should be entered after the sunset or before sunrise.
- There shouldn’t be any outer door of the homestead must be broken to enter the house unless the home is in possession of judgement debtor and he/she refuses to open it.
- If the space is in possession of woman who is barred by customs to be among the public, the officer must give reasonable time to her to withdraw and should enter the space with the aim of creating an arrest.
- If the arrest is formed where the decree in execution may be a decree of cash and therefore the judgement debtor pays the quantity of decree and price of arrest to the officer arresting him, the officer must release him directly.
The court before issuing a warrant of arrest must make sure that a notice has been issued to the judgement debtor providing him with a chance to elucidate the explanations for not complying with the court orders. If the court is satisfied by any means, that the judgement debtor may abscond the jurisdiction of the court and the other reasons which might cause in delay of execution of decree, then the court may order for arrest of judgement debtor.
WHO CANNOT BE ARRESTED
The following people are exempted from being arrested and detained due to the provisions under the CPC:
I. Women, as per Section 56,
II. Judicial officers, as per Section 135(1),
III. Where a matter is pending, their pleaders, mukhtars, revenue-agents, and witnesses acting in obedience to a summons, under Section 135(2),
IV. Members of legislatures, as per Section 135A,
V. Classes of persons, whose arrest consistent with the government, could be attended with danger or inconvenience to the general public, under Section 55(2), and
VI. Where the decretal amount is a smaller amount than two thousand rupees, under section 58(1A).
Exemption to judicial officers and member of legislative bodies isn't exhaustive and at any stage, the court can order for re-arrest. The immunity given to women is absolute and no women are often arrested in execution of cash decree at any stage and other remedies for execution are often opted for.
Under Order XXI Rule 37, an individual who is to be arrested shall tend a show-cause notice to seem before the court and provides reasons on why he shouldn't be committed, during the execution of the degree, to the civil prison. However, such notice isn't necessary if the court is satisfied, by affidavit or otherwise, that the effect of delaying the execution can cause absconding of the jurisdiction by the judgement debtor. If the judgement debtor doesn't appear before the court after serving of the notice, if the decree-holder so requires, the court shall issue a warrant to arrest such person.
The objective of serving notice is to stop the arrest and detention of an honest debtor who isn't ready to pay the debt thanks to some sufficient cause. The procedure of giving show cause notice is that the acknowledgement of the rule of natural justice that a person shall not be condemned unheard.
Under Order XXI Rule 40, it's stated that if the person appears before the court after the issuance of the notice as given under Rule 37, the court shall hear the decree-holder for the execution of the decree then give the prospect to the judgement holder for showing on why he shouldn't be arrested.
Where a judgement debtor appears before the court and shows the reasonable cause for his inability to pay the decretal amount and therefore the court is satisfied that he's unable to pay, the court may reject the appliance of the arrest. However, if the judgement debtor couldn't satisfy the court against the order passed against him for arrest and detention, the court may commit him to the civil prison, subject to the provisions of the code.
It has been held within the case of Mayadhar Bhoi v. Moti Dibya Citations: AIR 1984 Ori 162, 1984 I OLR 503, where a money decree has not been paid by the judgement debtor within thirty days since that order was made, the court on the appliance by the decree-holder require the judgement debtor to offer an affidavit stating the particulars of his assets, and if the person disobeys such order, he is often detained for 3 months.
Where an inquiry has been passed in relation with subrule 1 of Order XXI Rule 40, the court may after the conclusion of the inquiry, subject to the provisions given in Section 51 and to the opposite provisions of the code, order the person to be committed to the prison and shall order for arrest of the person if he's not already arrested.
Subsistence Allowance under Section 57 of CPC
A judgement debtor shall not be arrested in execution of decree unless and until the decree-holder pays into court such sum because the judge might imagine slot in accordance with scales fixed under section 57 if no scale has been fixed. The monthly allowance fixed by the court shall be supplied by the party on whose application the judgement debtor has been arrested by monthly payments beforehand before the primary day of every month. The monthly allowance supplied by the decree-holder must be included within the cost.
Period of detention under Section 58 of CPC
The period of detention in civil prison for execution may be:
- If the quantity to be recovered is five thousand or more, the amount shall not exceed than the three months.
- If the quantity to be recovered is exceeding the 2 thousand but below five thousand, then the amount shall not exceed six weeks.
- If the quantity to be recovered is a smaller amount than two thousand, then no order of arrest to be made.
If no act of bad faith is proved against a judgement debtor, then he must tend a chance to declare himself insolvent. it's the duty of the court to tell the judgement debtor before he could also be committed to civil prison that he has a chance to be declared insolvent. The court must confirm that the judgement debtor should furnish a surety on make sure that whenever called upon in any proceedings either insolvency or execution of decree he could also be present. The judgement debtor must tend a month period to declare himself insolvent, if he fails to try to so then no extension is going to be granted by the court; if an extension is given, that might be ultrararest. On failure to declare insolvency during the prescribed period, the judgement debtor could also be arrested at liberty of court.
Period of detention
Section 58 specifies the amount that an individual is often detained, which is set consistent with the quantity of the decree which has been passed against him by the court, and where he has does not pay that decretal amount. It says that an individual can't be detained for quite three months if the decretal amount exceeds five thousand rupees and, for an amount between two thousand to 5 thousand rupees, such detention cannot exceed six weeks. If the quantity doesn't exceed two thousand rupees, no order for detention of the judgement debtor is often made.
The remedy of execution by arrest and execution is an unprecedented remedy, it's not punitive and neither the arrest waves off the proper to suits the court decree. It gives a realization to the decree-holder of the worth of decree passed in his favour. It also protects the judgement debtor if he's not within the condition of complying with the writ. Wilful defaulters are susceptible to be arrested. This remedy is twofold because it protects the decree-holder also as a judgement debtor. This remedy isn't exhaustive, and it also prevents unusual harassment of judgement debtor, it also protects judgement debtor by giving subsistence allowance during his period of arrest.
There aremany opportunities given to judgement debtor to prove his/her intention for not complying with the decree. If the judgement debtor isn't a wilful defaulter, then he/she might not be arrested and given a chance to rectify his mistake. Therefore, these provisions aren't stringent.