Civil procedure code

1. Department of Law,
Prestige Institute of Management and
Research, Indore
Submitted To:- Submitted By:-
Mr. Gopal Kag Garima Shukla
BA.LL.B(Hons) Sem -VI
Section- ‘A’
“Arrest and Detention”

2. Introduction
 Arrest :- An arrest is when a person is apprehended and taken into custody (for
legal protection or control), usually because they are suspected of or seen committing a
crime. The person can be interrogated and/or charged after being taken into custody. An
arrest is a practice in the criminal justice system that is occasionally carried out once a
court warrant is issued.
 Detention:- Detention is the process of a state or private citizen lawfully detaining
a person and taking away their freedom or liberty at that moment. This could be due to
(pending) criminal charges or to protect a person or property. Being detained does not
always entail being brought to a specific location (often referred to as a detention
center) for interrogation or punishment for a crime (see prison). For the same reasons,
the phrase can be applied to property ownership. An arrest may or may not have
preceded or followed the process of detention.

3. When is it permissible to order arrest and detention?
 When a decree-holder approaches the court to have a decree executed, Section 51(c) of the CPC states that the court
may execute the order by arresting and detaining the judgment debtor.
 The following cases listed in Order XXI may result in an arrest and detention order:
 A decree for the payment of money can be carried out under Rule 30 by the arrest and detention of the judgment
debtor.
 When the decree is for a specific moveable person, it can be carried out by the arrest and detention of the judgment
debtor under Rule 31.
 When the decree is for a particular execution of a contract or an injunction, the court can enforce it by arresting and
detaining the judgment debtor un

4. Who is immune to being detained?
 Under the various provisions of the CPC, certain classes of people are free from arrest and detention. These people
include:
 According to Section 56, women.
 Section 135(1) refers to judicial personnel.
 Their pleaders, mukhtars, revenue agents, and witnesses act by a summons when a case is pending 135(2).
 Section 135A refers to members of legislatures.
 Under Section 55(2), classes of persons whose arrest, according to the State Government, may cause public danger
or inconvenience, and when the decretal amount is less than two thousand rupees, under Section 58 (1A).

5. PROCEDURE
The procedure to be followed for arrest and detention is provided under Section 55. It says that a judgement debtor can
be arrested at any hour or any day during the execution of a decree, and after such arrest, the person must be presented
before the court. However, there are certain restrictions regarding entry and time. They are as follows:
 That no dwelling house shall be entered after sunset and before sunrise.
 That no outer door shall be broken in order to enter the house unless such a house is the occupancy of the judgement
debtor, in case he refuses to prevent access thereto.
 Where the room is in occupancy of a woman who is not the judgement debtor and does not appear in public due to
the customs, the officer shall give reasonable time and facility to her to withdraw therefrom.
 Where there is a decree for the payment of money, and the judgement debtor pays the full decretal amount and the
costs of the arrest to the arresting officer, he shall not be arrested.

6. Notice
 A person who is to be arrested is handed a show-cause notice, which requires him to appear before the court and
explain why he should not be committed to the civil prison in execution of the judgment. However, if the court is
satisfied, by affidavit or otherwise, that delaying the execution will result in the judgment debtor absconding
from the jurisdiction, such notification is not required.
 If the judgment debtor fails to appear in court after being served with the notice, the court may issue an arrest
warrant if the decree-holder so requests.
 According to Order XXI Rule 40, if a person comes to court after receiving the notice under Rule 37, the court
shall hear the decree-holder for the implementation of the decree and then provide the judgment-holder the
opportunity to argue why he should not be arrested.
 In the case of Mayadhar Bhoi vs Moti Dibya ,the court held that if a money decree is not paid by the judgment
debtor within thirty days of the date of the order, the court may order the judgment debtor to give an affidavit
stating the particulars of his assets, and if the person disobeys the order, he can be detained for three months.

7. DURATION OF DETENTION
Section 58 specifies the period for which a person can be detained, which is decided according to
the amount of the decree which has been passed against him by the court, and where he has failed
to pay that decretal amount. It says that:-
 a person cannot be detained for more than three months if the decretal amount exceeds five
thousand rupees and,
 for an amount between two thousand to five thousand rupees, such detention cannot exceed
six weeks.
 If the amount does not exceed two thousand rupees, no order for detention of the judgement
debtor can be made.

8. RELEASE OF JUDGEMENT DEBTOR
Under Section 58, every person who has been detained in civil prison shall be released before the
said period of detention on the following grounds:
 Where the decree against him has been fully satisfied,
 Where the amount mentioned in the warrant for his detention has been paid to the police officer,
 Where the person on whose application the person was detained requests so, or
 Where the person on whose application such detention was made omits to pay subsistence
allowance.

9. CONTINUE:-
Section 59 provides that a warrant issued by a court for the arrest of the person can be cancelled
anytime if there is some serious illness to the judgement-debtor. And if such arrest has already been
made, and it appears to the court that the person is not in a fit state of health to be in prison, may
order for his release.
 Where the judgement debtor has been committed to prison, he may be released:
 By the State Government, if there exists some infectious or contagious disease, or
 By the court which granted the execution;
 Or any court which is superior to the above court, on the grounds of serious illness.

10. RE- ARREST
 Any person that has been released on grounds of serious illness in accordance with Section 59
can be arrested again but the period of detention in aggregate should not be more than that
prescribed by Section 58.
 Any person whose period of arrest has been completed as given under Section 58 cannot be
arrested again under the decree in execution of which he was detained in the civil prison.
 Any person that has been released in accordance with Order XXI Rule 40 can be re-arrested.

11. CONCLUSION
The purpose of arrest and detention is to give relief to a decree-holder and commit the
judgement debtor to the civil prison if he does not pay the decretal amount despite
having means to pay the same. However, it also protects honest debtors, where his
inability to pay is supported by a reasonable cause. The court has to afford the right to
be heard to the debtors in order to ensure proper justice.

12. THANK YOU