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Cpc sem 8 - Arrest and detention in CPC with reference to

Jolly Verghese case
LLB (Panjab University)

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CIVIL PROCEDURE CODE,1908

TOPIC : Arrest and Detention with reference to Jolly Verghese v.
The Bank of Cochin

SUBMITTED TO: SUBMITTED BY:

DR. KARAN JAWANDA KRITIKA
BA LL.B (SECTION A)
06/18

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ACKNOWLEDGEMENT
I would like to express our sincere gratitude to Dr. Karan Jawanda who
bestowed upon us this golden opportunity to prepare this erudite project
titled “ARREST AND DETENTION WITH REFERENCE TO JOLLY
VERGHESE v. BANK OF COCHIN” under her aegis. As I worked on this
project, I got an opportunity to unearth various contours of the subject and I
got to understand the nuances of the topic. It led to lot of research and hence
I was able to gain extensive knowledge.
I would also like to extend thanks to my family and friends who backed me
with more strength and were constant pillars of support

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Table of Contents
Introduction...............................................................................................................................................4
Object........................................................................................................................................................4
Arrest and detention as a mode of execution............................................................................................4
Procedure..................................................................................................................................................6
Notice- O.21 R.37,40................................................................................................................................7
Rule 37..................................................................................................................................................7
Rule 40..................................................................................................................................................8
Subsistence allowance...............................................................................................................................9
Who cannot be arrested?...........................................................................................................................9
Period of Detention: SECTION 58.........................................................................................................10
Release of Judgment-Debtor...................................................................................................................10
Section 58 Proviso..............................................................................................................................10
Section 59............................................................................................................................................11
Jolly George Verghese & Anr v. The Bank Of Cochin............................................................................11
Facts....................................................................................................................................................11
Issue....................................................................................................................................................12
Observations of Supreme Court..........................................................................................................12
Held.....................................................................................................................................................14
Conclusion..............................................................................................................................................14

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TABLE OF CASES
Jogender Missir v. Ramnadan Singh.........................................................................................................8
Jolly George Verghese & Anr v. The Bank Of Cochin...........................................................................12
Jolly Verghese v. The Bank of Cochin......................................................................................................8
Prakash Bhagwani v Sammati Food Products Pvt Ltd Sagar,...................................................................6
S Balamurli v K Vikramanunni,................................................................................................................6
Subrata Roy Sahara v. Union of India.......................................................................................................5
Umakant v Renwick & Co Ltd.................................................................................................................5

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“Arrest and Detention of the judgment debtor will not discharge him from payment
of debt.”

INTRODUCTION
The term “execution” has not been defined in the code. The expression “execution” simply means the
process for enforcing or giving effect to the judgment of the court. The principles governing execution
of decree and orders are dealt with in Sections 36 to 74 and Order 21 of the Civil Procedure Code.
Execution is the enforcement of a decree by a judicial process which enables the decree-holder to
realize the fruits of the decree and judgment passed by the competent Court in his favour. Execution is
complete when the decree-holder gets money or other thing awarded to him by the judgment, decree or
order of the Court. It is the last stage of any civil litigation.

The Code enumerates various modes of execution, one of such modes being ARREST AND
DETENTION of the judgment debtor in civil prison. Section 55 to 59 and rules 37 to 40 of O 21 deal
with arrest and detention of the judgment debtor in civil prison.

Object
In the case of Subrata Roy Sahara v. Union of India1, the court stated that the purpose of sending a
person to jail must be understood as being a manner, procedure or device, for the satisfaction of
liability. Arrest and detention is only to coerce compliance. The liability to pay would stand discharged
only by actual payment. Remaining in jail would not discharge the liability to pay.

Arrest and detention as a mode of execution

Section 51(c), CPC states that the Court may on the application of the decree holder order execution of
decree by ARREST AND DETENTION in prison but the time period should not exceed as specified
in section 58, CPC. It is for the decree-holder to choose in which of the several modes mentioned in
the section, will he execute the decree, but his option is subject to the provisions of the CPC and to the
discretion of the court2.

1 (2014) 8 SCC 470

2 Umakant v Renwick & Co Ltd, AIR 1953 Cal 717
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Proviso to section 51 states that in case of money decree, 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 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

(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

The Explanation to section 51 of the Code shows that in calculation of the means of the judgment-
debtor for the purpose of clause (b) of the Proviso, any property which is exempted from attachment in
execution of the decree either by law or by custom having the force of law shall be left out. Thus,
where execution of a money decree is sought by arrest and detention and salary is shown as the means
of the judgment-debtor, an enquiry is necessary as to what is the attachable portion of the salary in
terms of section 60 of the Code.3

The proviso to this section restricts the power of the executing court to direct the arrest and detention
of the judgment debtor in execution of the decree for payment of money. The object of the proviso is to
afford protection to indigent and honest debtors. Therefore, mere non-payment of the amount of the
decree is not enough to send the judgment-debtor to prison. But if the conduct of the judgment-
debtor is dishonest or contumacious, he is liable to be arrested and detained.4

Its provisions are mandatory and must be strictly complied with. No order for arrest should be made
unless the court is satisfied for reasons to be recorded in writing that the judgment-debtor should be
committed to prison for one of the reasons set out therein.5

3 S Balamurli v K Vikramanunni, AIR 2007 Ker 280

4 Prakash Bhagwani v Sammati Food Products Pvt Ltd Sagar, AIR 2002 MP 127 .
5 Parmanandaswami v Shunmugam Pillai, AIR 1949 Mad 822
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According to the Madras High Court, the inhibition contained in section 51, proviso, applies only to
an order for detention in prison and not to order for arrest of the judgment-debtor. Therefore,
where, in the proceedings for execution of a money decree, on the day the matter was called, the
judgment-debtor was absent and the court acting on the affidavit filed by the decree-holder, found that
the judgment-debtor had sufficient income, the order of the court directing arrest of the judgment-
debtor would be valid.6

The object of detaining a judgment-debtor in a civil prison is not to punish him for any crime but for
enabling the decree-holder to realise the money decreed in his favour, and for the purpose of
achieving this alone, the conditions in the proviso have been formulated. The conditions in the proviso
are a mandate to the court and are intended to protect debtors who cannot pay for reasons beyond
their control.

Procedure
The procedure to be followed for arrest and detention is provided under Section 55(1). 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 as soon as practicable.

 For the purpose of making arrest, 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 pardanashin woman who is not the judgement debtor, 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.7
 No order to detention of the judgement-debtor shall be made where the decretal amount does
not exceed rupees 20008. No judgement-debtor may be arrested unless and until the decree
holder pays into Court the subsistence allowance as fixed by the Court9
 In an application for arrest and detention of judgment debtor, the decree holder must state of
file an affidavit stating the grounds on which arrest is sought10.

6 KN Gangappa v AM Subramanya Mudaliar, AIR 1988 Mad 182 .

7 Section 55(1)
8 Rule 58 (1-A)
9 R.39
10 R.11-A
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SECTION 55(2) is intended to cover the cases of certain persons or classes of persons whose
summary arrest might be attended with danger or inconvenience to the public.

SECTION 55(3) provides that it is the duty of the court to inform the judgment debtor that he may
apply to be declared as an insolvent and that he may be discharged if he has not committed any act of
bad faith and complies with the law of insolvency.

SECTION 55(3) states that where a judgment-debtor expresses his intention to apply to be declared an
insolvent and furnishes security that

 he will within one month so apply, and

 he will appear, when called upon, in any proceeding 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 realised or commit him to the civil prison in execution of the decree.

Notice- o.21 r.37,40

Rule 37
Rule 37(1) states that before passing an order of arrest of the judgment-debtor, the executing court is
required to issue a notice calling upon the judgment-debtor to show cause why he should not be
committed to the civil prison. Under proviso to r 37, this notice can be dispensed with if the executing
court is satisfied that the judgment-debtor is likely to abscond or leave the local limits of the
jurisdiction of the court with the object of delaying the execution. Where, however, no finding is
recorded that the judgment-debtor is likely to abscond or leave local limits of court, the order directing
the arrest of judgment-debtor is without jurisdiction.59

The underlying object of “issuing notice is to” afford protection to honest debtors incapable of
paying dues for reasons beyond their control11.The provision for issuing notice and affording
opportunity to the judgment debtor to show cause recognizes a rule of natural justice that no person
should be condemned unheard. An order of arrest and detention without issuing notice of affording an
opportunity to show cause is bad in law.12

Rule 37(2) Where the court issues a notice to the judgment-debtor but he fails to appear, the court is
required to issue a warrant of arrest if the decree-holder so desires.

11 Jogender Missir v. Ramnadan Singh, AIR 1968 Pat 218

12 Jolly Verghese v. Board of Cochin, (1980) 2 SCC 360
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Rule 40
 Clause (1) of r 40 of O 21 provides that after notice issued under r 37, the court shall proceed
to hear the decree holder and to take all such evidence as may be produced by him in support of
his application for execution. It shall then give the judgment-debtor an opportunity of showing
cause why he should not be committed to the civil imprisonment.86
 R.40(2) Where an inquiry is pending under subrule 1 of Order XXI Rule 40, the court can order
the release of the judgement debtor, upon its discretion if the judgement debtor furnishes the
security to the satisfaction of the court for his appearance before the court.
 R.40 (3) states that upon the conclusion of the inquiry under R.40(1) , Subject to the provisions
of S.51 and other provisions of the code, the Court may make an order for the detention of the
Judgment debtor in civil prison.
Also, the court in order to give the opportunity of satisfying a decree to the judgement debtor,
before ordering the detention of the person, under this subrule, may provide fifteen days to the
judgement debtor for satisfying the decree, by leaving the person in custody of the police
officer or may release him on furnishing security to the satisfaction of the court, on the
condition that the person will appear after the expiration of the specified period if the decree is
not satisfied before the end of the period.
 R.40(5)- Where the court does not make an order of detention under subrule 3 of Order XXI
Rule 40, it can refuse the application and if the judgement debtor is already under arrest, order
for his release.
Imprisonment for debt- Under this rule, the court has a discretion to refuse to order the arrest
and detention of a debtor who is unable to pay. In a case where there was a joint decree against
A and his relations B, C and D, and the judgment-creditor instead of proceeding, against B, C
and D, who were able to pay, sought to arrest A who was unable to pay in order to put pressure
upon his relations, the court rejected the application for the arrest of A.93
 R.40(4) states that a Judgment debtor released under this rule may be re-arrested.

Where the judgement-debtor appears before the Court in obedience to such notice, and if the Court is
satisfied that he is unable to pay the decretal amount, the Court may reject the application for arrest.
On the other hand, where the judgement-debtor appears but fails to show cause to the satisfaction of
the Court against the arrest and detention, the Court may, subject to the provisions of the Code, make
an order of detention.

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Where a money decree has remained unsatisfied for a period of thirty days, the Court may, on the
application of the decree holder, require the judgement-debtor to make an affidavit stating the
particulars of his assets. The person disobeying the order may be detained upto three months.13

Subsistence allowance
SECTION 57 states that the State Government may fix scales, graduated according to rank, race and
nationality, of monthly allowances payable for the subsistence of judgment-debtors.

R.39- Subsistence allowance.—

 No judgment-debtor shall be arrested in execution of a decree unless and until the decree-
holder pays into Court such sum as the Judge thinks sufficient for the subsistence of the
judgment-debtor from the time of his arrest until he can be brought before the Court.
 Where a judgment-debtor is committed to the civil prison in execution of a decree, the Court
shall fix for his subsistence such monthly allowance as he may be entitled to according to the
scales fixed under Section 57, or, where no such scales have been fixed, as it considers
sufficient with reference to the class to which he belongs.
 The monthly allowance fixed by the Court shall be supplied by the decree holder by monthly
payments in advance before the first day of each month.
 Sums disbursed by the decree-holder for the subsistence of the judgment-debtor in the civil
prison shall be deemed to be costs in the suit

Provided that the judgment-debtor shall not be detained in the civil prison or arrested on account
of any sum so disbursed

Who cannot be arrested?

The following classes of persons cannot be arrested or detained in civil prison,

(i) A woman in case of money decrees (sec. 56)

(ii) Judicial officers, while going to preside in or returning from the Courts, (sec 135)

(iii) The parties, their pleaders, mukhtars, revenue agents and recognised agents and their witnesses
acting in obedience to a summons, while going to, or attending, or returning from the Court, (sec 135)

13 R. 41(2),(3)
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(iv) Members of legislative bodies; and (sec 135 A)

(v) Any person or class of persons, whose arrest according to the State Government might be attended
with danger or inconvenience to the public.{sec 55(2)}

(vi) Where the amount of decree is less than 2000 Rs. {sec 58 (1)(a)}

(vii) where the decree to be executed is for restitution of conjugal rights. (r. 32, o.21)

Period of Detention: SECTION 58

The period of detention of the judgement-debtor in the civil prison shall be

(a) upto three months, where the decretal amount exceeds Rs.5000; and

(b) upto six weeks, where the decretal amount exceeds rupees 2000/- but does not exceed rupees
5000/

(c) No arrest where the amount is less than Rs. 2000.

Release of Judgment-Debtor
SECTION 58 PROVISO
A Judgement-debtor shall be released before the expiry of the period of detention on the following
grounds:

(i) on the amount mentioned in the warrant being paid; OR

(ii) on the decree against him being otherwise fully satisfied; OR

(iii) on the request of the decree-holder; OR

(iv) on the omission by the decree-holder to pay subsistence allowance

Moreover, section 58(2) specifically lays down that such release, however, does not discharge the
judgement-debtor from his debt, but he cannot rearrested on the same ground.

SECTION 59
It 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.
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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.

This provision shall be applied liberally since it is a beneficial provision.

Jolly George Verghese & Anr v. The Bank Of Cochin

on 4 February, 1980

Equivalent citations: 1980 AIR 470, 1980 SCR (2) 913

Bench: Krishnaiyer, V.R., Pathak R.S

Facts

 That the judgment-debtors (appellants) suffered a decree against them in a sum of Rs. 2.5 lakhs,
the respondent-bank being the decree-holder. There were two other money decrees against the
appellants, the total sum payable by them being over Rs. 7 lakhs.

 That in execution of the decree in question, a warrant for arrest and detention in the civil
prison was issued to the appellants under s. 51 and o.21, r. 37 of the Civil Procedure Code on
22-6-1979. Earlier, there had been a similar warrant for arrest in execution of the same decree.
That

 That all the immovable properties of the judgment debtor had been attached for the purpose of
sale in discharge of the decree debts. The execution court had also appointed a Receiver for the
management of the properties under attachment.

 That no investigation was made by the executing court regarding the current ability of the
judgment-debtors to clear off the debts or their mala fide refusal, if any, to discharge the debts.

 That the High Court, in a short order, has summarily dismissed the revision filed by the
judgment-debtors against the order of arrest.

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 That the Judgment debtors appealed by special leave from the Judgment and Order dated 9-7-
1979 of the Kerala High Court.

Issue
 Whether the personal freedom of the judgment-debtors can be held in ransom until repayment
of the debt as per s. 51 read with O. 21, r. 37, C.P.C.?
 Whether the Section 51 r/w O.21 R.37 is constitutional, tested on the touchstone of fair
procedure under Art. 21 and in conformity with the inherent dignity of the human person in the
light of Art. 11 of the International Covenant on Civil and Political Rights.

Observations of Supreme Court

 The Court thoroughly examined Section 51,CPC and O.21,R.37,CPC

 The Court referred to Art. 11 of the International Covenant on Civil and Political Rights
which reads: No one shall be imprisoned merely on the ground of inability to fulfil a
contractual obligation. It was observed that the Covenant bans imprisonment merely for not
discharging a decree debt. Unless there be some other vice or mens rea apart from failure to
foot the decree, international law frowns on holding the debtor's person in civil prison, as
hostage by the court. India is now a signatory to this Covenant and Art. 51 (c) of the
Constitution obligates the State to "foster respect for international law and treaty obligations in
the dealings of organised peoples with one another".

 The Supreme Court relied upon a Kerala High Court ruling which examined whether there is
any conflict between s. 51 CPC and Article 11 of the International Covenant. It was observed in
the judgment that the latter provision only interdicts imprisonment if that is sought solely on
the ground of inability to fulfil the obligation. Section 51 also declares that if the debtor has no
means to pay he cannot be arrested and detained. If he has and still refuses or neglects to
honour his obligation or if he commits acts of bad faith, he incurs the liability to imprisonment
under s. 51 of the Code, but this does not violate the mandate of Article 11. However, if he
once had the means but now has not or if he has money now on which there are other
pressing claims, it is violative of the spirit of Article 11 to arrest and confine him in jail so
as to coerce him into payment.........

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 The Hon’ble Supreme Court considered the import of Art. 21 of the Constitution in the
context of imprisonment for non-payment of debts. The high value of human dignity and the
worth of the human person enshrined in Art. 21, read with Arts. 14 and 19, obligates the State
not to incarcerate except under law which is fair, just and reasonable in its procedural essence. .
It is too obvious to need elaboration that to cast a person in prison because of his poverty and
consequent inability to meet his contractual liability is appalling. To be poor, in this land of
daridra Narayana, is no crime and to 'recover' debts by the procedure of putting one in
prison is too flagrantly violative of Art. 21 unless there is proof of the minimal fairness of
his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing
claims on his means such as medical bills to treat cancer or other grave illness.
Unreasonableness and unfairness in such a procedure is inferable from Art. 11 of the Covenant.
But this is precisely the interpretation we have put on the Proviso to s. 51 C.P.C. and the lethal
blow of Art. 21 cannot strike down the provision, as now interpreted.

 The words "or has had since the date of the decree, the means to pay the amount of the
decree" imply, superficially read, that if at any time after the passing of an old decree the
judgment-debtor had come by some resources and had not discharged the decree, he could be
detained in prison even though at that later point of time he was found to be penniless. This
is not a sound position apart from being inhuman going by the standards of Art. 11 (of the
Covenant) and Art. 21 (of the Constitution). The simple default to discharge is not enough.
There must be some element of bad faith beyond mere indifference to pay, some
deliberate or recusant disposition in the past or, alternatively, current means to pay the
decree or a substantial part of it. The provision emphasises the need to establish not mere
omission to pay but an attitude of refusal on demand verging on dishonest disowning of
the obligation under the decree. Here considerations of the debtor's other pressing needs and
straitened circumstances will play prominently.

 In the present case the debtors were in distress because of the blanket distraint of their
properties. Whatever might have been their means once, that finding has become obsolete in
view of later happenings. The Court directed the executing court to re- adjudicate on the
present means of the debtors vis a vis the present pressures of their indebtedness, or
alternatively whether they have had the ability to pay but have improperly evaded or postponed
doing so or otherwise dishonestly committed acts of bad faith respecting their assets. The court
has to take note of other honest and urgent pressures on their assets, since that is the exercise

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expected of the court under the proviso to s. 51. An earlier adjudication will bind if relevant
circumstances have not materially changed.

Held
The judgment under appeal was set aside and the executing court was directed to decide de-
novo the means of the judgment- debtors to discharge the decree in the light of the
interpretation by Supreme Court.

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.

In the 54th Law commission of India report (1973)- the question to be considered was whether
arrest as a mode of execution should be retained on the statute book, particularly in view of the
provisions in the International Covenant on Civil and Political Rights prohibiting imprisonment for a
mere non- performance of contract. The Law Commission examined various provisions in US and
England and also observed that the provisions as to arrest do not violate the provisions in the
International covenant as they are not based on mere non fulfillment of contract. Further, even apart
from their consistency with the covenant they are justifiable on the principle because the conduct
which attracts their operation is dishonest. Technically, no crime is committed, as is no bodily harm to
the decthe piece has not been submitted to any other journal, magazine, newspaper or digital platform
for publication in any other form.ree holder or direct harm to the society. But to deprive another person
of his lawful dues when one has a means to pay is in the Special Situations to which section 51
providers can find, ultimately causing harm to society. Which suffers if an individual member suffers
by reason of the dishonest conduct of another member.

The Low Commission observed that the provision should not be completely abolished, but rather a
recommended the following changes to section 51, proviso, clause (a) and clause (b)

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(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 is without lawful excuse, likely leave the local limits of the
jurisdiction of the Court, or

(ii) 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

(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 without
lawful excuse refused or neglected to pay the same.

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BIBLIOGRAPHY
 Mulla, The Code of civil procedure, Lexis nexis butterworks,18th edn., 2013
available at https://www.clatpath.in/pdf/CPC%20by%20Mulla%2018th
%20Edition.pdf
 Takwani, C.K., Civil Procedure,2017, Eastern book Company, Lucknow, 8th edn.,
2017
 Different types of Decrees and Modes of their execution available at
http://mja.gov.in/Site/Upload/GR/Title%20NO.217(As%20Per%20Workshop
%20List%20title%20no217%20pdf).pdf accessed on 15 May,2022 at 10:15pm
 Arrest and Detention for Execution of a Decree under CPC available at
https://blog.ipleaders.in/arrest-and-detention-for-execution-of-a-decree-under-
cpc/#:~:text=21%20Rule%2040.-,Procedure%20for%20arrest,civil%20prison
%20of%20the%20district. Accessed on 11 May,2022 at 7:25pm
 Arrest And Detention Under Civil Procedure Code available at
https://www.legalserviceindia.com/legal/article-6566-arrest-and-detention-under-
civil-procedure-code.html accessed on 13 May,2022 at 12:16 am
 Arrest And Detention Under Civil Law available at
https://www.lawctopus.com/academike/arrest-and-detention-under-civil-law/
accessed on 13 May,2022 at 2:06 am

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