Open Access Research Article
EXECUTION OF DECREE UNDER THE CIVIL PROCEDURE CODE 1908: ARREST, DETENTION, RELEASE AND SEIZURE
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Article Details
“EXECUTION OF DECREE UNDER THE
CIVIL PROCEDURE CODE 1908: ARREST, DETENTION, RELEASE AND SEIZURE”
AUTHORED BY - ALIND GUPTA
Abstract
The stage of execution is arguably one of the most crucial stages for the
person who approaches the court for relief. It is in this stage that the person
gets the fruits of the decree. The present paper focuses on this stage of the
civil procedure while looking at the executing court’s following powers under
Section 51 of the Code of Civil Procedure 1908: arrest, detention, release and
seizure. Part 1 maps out the meaning and implications of the stage of execution
in a civil case. It deals with the relevant case laws and the reports of the
Law Commission of India on the said aspect. Part 2 looks at power of arrest in
civil cases and the circumstances in which it can be exercised. Part 3 sheds
light on detention and release of the judgment debtor in the context of
Sections 58 and 59. Part 4 highlights the power of seizure under the civil
process.
INTRODUCTION
A civil
suit comes to an end when a judgment or decree is issued by a civil court.
However, till the person in whose favour decree is issued obtains the fruits of
the decree, it remains mere piece of paper. The Civil Procedure Code empowers
the courts with vast powers to ensure the decree holder is able to obtains the
benefits mentioned under the decree.[1]
This is called ‘Execution of decrees’ which is covered under Order XXI of the
Civil Procedure Code. The code does not contain any definition for the term
"execution". However, Halsbury’s Laws of England defines it as
‘enforcement of or giving effect to a judgment or order of court of justice’.[2]Execution
ensures that the decree holder is able to translate the decree issued in his
favour to reality.
Section 51
provides the executing court powers to enforce the decree which includes power
to deliver property, attach or sell the property, arrest and detain the
judgment debtor, appointment of receiver and other orders as maybe required.[3]The
power to detain is exercised sparingly as it involves curtailment of personal
liberty of a person. Because of the gravity of such power, the court shall
issue a notice to the judgment debtor in order to give him opportunity to show
why he should not be arrested.[4]
The court has to satisfy itself with regard to the conditions mentioned in the
proviso of Section 51. The power of arrest and detention is contained in Section
55 of the Civil Procedure Code and grounds of release are contained in Sections
58 and 59. This article is limited to powers of arrest, detention, release and
seizure in execution of decrees.
Part 1-EXECUTION OF DECREE
Execution
of decrees takes place after a civil suit has concluded nonetheless it is one
of the most important stages contained in the Civil Procedure Code. While
legally speaking a civil suit comes to an end with the passing of decree by the
court, for practical purposes unless the decree-holder gets the fruits of the
decree, the decree remains a mere piece of paper. This is because the entire
purpose of filing a suit is not to obtain a favourable decree but to get the
remedy sought from the court. This remedy is obtained by the execution of a
decree obtained from the court.[5]
The term
‘execution’ has not been defined anywhere in the code. Halsbury’s Laws of
England defines it as ‘enforcement of or giving effect to a judgment or order
of court of justice’.[6]Execution
in the most basic sense signifies the process of the enforcement of judgement
or decree passed by a competent court of justice. Execution also, in a
practical sense, completes the suit as it provides the plaintiff what he came
to the court for.
The law
pertaining to execution is codified in Sections 36-74 and Order 21 of the Civil
Procedure Code. The provisions relating to execution are applicable not just to
decrees but also to orders.[7]Such
decrees can be executed by the court that passed the decree or by the court to
which the decree is sent for execution.[8]
This makes it clear that the court which passed the decree can be different
from the court executing it. This transfer of decree is duly explained under
Section 39 which lays down the scenarios in which the court passing a decree
can transfer the decree to another court for execution. However, the important
thing to note here is that the executing court has no power to change the
decree or maker any alterations in the decree. It has to merely execute what’s
contained in the decree.[9]
In the case
of Ghanshyam Das v. Anant Sinha[10],
which dealt with the execution of decrees under the Civil Procedure Code,
the Supreme Court of India stated that the Civil Procedure Code contains
elaborate and exhaustive provisions with respect to execution of decrees. The
numerous rules contained in Order 21 of the Civil Procedure Code take care of
different situations providing relief to not just the decree holder and
judgment debtor but also to any other claimant objector who objects to the execution
of decree in a particular way. Even after such detailed remedies if theirs is
no provision providing adequate relief to a person, then that person is at full
liberty to file another suit. The remedy provided under the Civil Procedure
Code is a better and superior remedy as compared to remedies provided under
other statutes and courts. This also places a higher burden on the judge to
dispense justice.[11]
The stage
of execution can be very frustrating for the decree holder since he has already
obtained the decree in his favour but has not obtained the fruits of the
decree. Various law commissions have tried to identify the issues involved in
the stage of execution of decrees. The 14th Law Commission Report on
‘Reforms of Judicial Administration’ stressed that the real difficulty of a
litigant begin when he has obtained the decree.[12]It
identified that one of the most convenient way to delay the execution
proceedings is the dishonest and frivolous tactic of the judgment debtor to
file pleas for payment and adjustment. This led the law commission to suggest
that orders passed in a money decree (small causes) should be made
non-appealable.[13]
In other of
its reports[14],
it attempted to strike a balance between right of judgment debtor and
expedience required in execution of the decree. It made various recommendations
and suggestions to improve the execution of decrees and ensure that fruits of
the decree are given to the decree holder.
Section 51
of the Civil Procedure Code grants wide powers to ensure execution of a decree.[15]As
a general rule, the decree holder can, while applying for execution of a
decree, avail an option to choose a particular mode of execution of a decree
passed in his favour. However, Section 51 makes it clear that this is ‘subject
to such conditions and limitations as maybe prescribed’ by the Code.[16][17]
The vast
amount of powers has been given to a civil court under the Civil Procedure Code
so as to ensure that the fruits of the decree is provided to the decree holder
as soon as possible without any delay. Without execution of decree, the decree
remains merely a piece of paper, completely useless to the decree holder. Such
vast powers include the power to order delivery of property[18],
attachment or sale of property[19],
arrest and detention in prison[20],
appointment of receiver[21]
or any other manner as the nature of relief may require[22].
Despite the
need to execute the decree expeditiously, the Civil Procedure Code has also
recognized the rights of a judgment debtor and provided him many safeguards to
ensure due process is followed. The personal liberty of the judgment debtor has
been give due weightage under Section 51 which lays down certain conditions to
ensure that the power of arrest or detention is not used against judgment
debtor in a rash and extravagant way in the execution of decrees.
For the
purposes of the present paper, we shall be confined to the power of:
1. arrest
2.
detention
3. release
4. seizure.
The
personal liberty of a person is protected under Article 21 of the Indian
Constitution, which forms the core of the chapter of fundamental rights
contained in Part III of the Indian Constitution. This requires that the power
of arrest maybe exercised sparingly, especially in civil cases in which the
execution of a decree is required. Clause (c) of Section 51 of the Civil
Procedure Code gives a civil court the power to arrest and detain a judgment
debtor for the purposes of execution of decree. However, this clause gives
immense power to the civil court and must be read in conjunction with the
proviso to Section 51 added by amendment of 1936.
Proviso to
Section 51 lays down that arrest of a judgment debtor cannot be ordered unless
a show-cause notice is given to him as to enable to present his side and
convince the court that why he should not arrest. Further, the proviso lays
down conditions, one of which must be fulfilled so as to order for his arrest.
The conditions are:
‘(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’.[23]
The
provisions are mandatory in nature and cannot be waived in any circumstance
because of the importance given to liberty of a person under Indian
Constitution.[24]This
requires strict compliance of the courts while execution of decree. As opposed
to the traditional notion of a prison, the purpose of arrest of a judgment
debtor is not to impose punitive sanction.[25]
The primary requirement of arrest is to secure the payment from the judgment
debtor and not to punish him.[26]
Section 55
provides many safeguards to the judgment debtor. The judgment debtor cannot be
arrested in his dwelling house before or after sunset. The person arresting the
judgment debtor cannot break the outer door unless he is being prevented from
enforcing the warrant of his arrest. If a room is in possession of a woman, a
reasonable amount of time is to be given for the woman to withdraw. Section 56
also makes it clear that a woman cannot be arrested in execution proceedings.
If judgment debtor pays the decretal amount along with the cost of arrest, then
he may be released. Subsistence allowance needs to be paid by the decree holder
for arrest.
In the
recent case of Subrata Roy Sahara v.
Union of India[27],
the Supreme Court of India held that for securing payment of money from the
judgment debtor, the executing court may order arrest and detention of the
judgment debtor.[28]
However, the object of subjecting the judgment debtor to prison to ensure that
the fruits of the decree are obtained by the decree holder and not to ensure
punishment is given to the judgment debtor for non-payment of money. This
implies that a judgment debtor would not be discharged from his liability once
he is subjected to arrest and detention. Arrest and detention is only to ensure
satisfaction of the decree.
In Jolly George v. Bank of Cochin,[29]
the Supreme Court held that the power to detain or arrest a judgment debtor
must be exercised cautiously. Mere non-payment of the decree amount would not
be sufficient to arrest the judgment debtor. Article 11 of the International
Covenant on Civil and Political Rights laid down that ‘No one shall be
imprisoned merely on the ground of inability to fulfil a contractual
obligation’.[30]
India being a signatory to such covenant must honour it by Article 51(c). So,
there be an element of bad faith in addition to non-payment in order to arrest
a judgment debtor.[31]
PART 3-DETENTION AND RELEASE
Section 58
contains the law relating to detention of a judgment debtor in execution of a
decree by an executing court. A judgement debtor may be arrested upto 3 months
if the total amount of decree exceeds 5000 rupees, upto 6 weeks if the amount
is between 2000 and 5000 rupees and if the amount is less than rupees 2000, a
judgment debtor cannot be detained.
The total
amount of decree includes the future interest that is accrued from the
non-payment of the decretal amount since it is obtained by the decree itself.
This forms part of the decree when it is mentioned by the court passing such
decree. However, the cost of arrest and police aid is not to be included in the
total amount of decree.[32]
If the
court determines that the judgment debtor should be detained, it must reasons
for its decision for the purposes of execution of decree secured by the decree
holder by a competent court of justice.[33]The
requirement to record reasons is a mandatory requirement. Failure by the court
to record reasons for its satisfaction constitutes a disregard for a crucial
and obligatory legal provision. These reasons should be documented in all
proceedings when the judgment debtor is instructed to be incarcerated..[34]
Section 58
also lays certain conditions in which the judgement debtor can be released
before the period of detention is complete. Those are:
‘(i) on the
amount mentioned in the warrant for his detention being paid to the officer in
charge of the civil prison, or
(ii) on the
decree against him being otherwise fully satisfied, or
(iii) on
the request of the person on whose application he has been so detained, or
(iv) on the
omission by the person, on whose application he has been so detained, to pay
subsistence allowance’.[35]
Section 58
of the Civil Procedure Code was amended in 1976 in order to give discretion to
the court as to the term for which a person may be subjected to detention in
civil prison for execution of a decree for the payment of money.[36]
The court
while ordering the detention of the judgment debtor in execution proceedings
must specify the period for which the judgment debtor is to be kept in
detention. Failure to specify the period would result in setting aside of such
order.[37]
Further the
1999 amendment raised the value of money from 500 and 1000 to 2000 and 5000
keeping in view the decrease in value of money.[38]
Section 59
incorporates a humanitarian provision and provides that a judgment debtor can
be released or his warrant can be cancelled on the ground of illness.[39]
The object of such a section is to give effect to a humanitarian aspect of law
in which health of a person becomes a relevant issue. If a judgment debtor is
experiencing a severe illness, the court is obligated to grant them release in
order to avoid any moral liability in the event that something should happen to
them while in prison.[40]
The court
has a duty to consider the plea of the judgement debtor that he is suffering
from illness while ordering for his arrest. Section 59 gives the power to the
executing court to cancel the arrest on humanitarian grounds. The court can
consider such plea of the judgment debtor and pass relevant orders.[41]
PART
4-SEIZURE
The power
of seizure is also very important in execution of a decree obtained by the
decree holder, although it is not as serious as the power of arrest or
detention. The power of seizure of property is given to the executing court in
furtherance of the court’s power to order delivery or attachment of the
property. In a way, the power of seizure supplements the court’s power to order
for delivery or attachment of property.
Attachment
signifies that the judgment debtor is restrained from alienating the property
which has been attached by the order of the court. The judgment debtor loses
all rights over the property and cannot create any charge over the property.
The property is transferred to the executing court on attachment and is further
used for the execution of decree in favour of the decree holder. The law
relating to attachability of property is contained in Section 60 of the Code of
Civil Procedure.
Black’s law
dictionary defines seizure as
‘The act performed by an officer of the law,
under the authority and exigence of a writ in taking into the custody of the
law the property, real or personal, of a person against whom the judgment of a
competent court has passed, condemning him to pay a certain sum of money, in
order that such property may be sold, by authority and due course of law, to
satisfy the judgment.’[42]
When the execution pertains to any
specific movable property, the same may be done (i) by seizure and delivery of
the property? or (ii) by detention of the judgment debtor? or (iii) by the
attachment and sale of his property? or (iv) by attachment and detention both.[43] The law
concerning seizure of movable property is contained in Section 62 of the Code
of Civil Procedure. While section 55 deals with arrest of a judgment debtor in
execution of a decree, section 62 has corresponding provisions for seizure of
movable property of the judgement debtor.[44]This
power is exercised when the judgment debtor is not complying with court’s order
of delivery of property.
In Teeka v. State of Uttar Pradesh,[45] in relation to Rule 43 of Order XXI, the
Supreme Court ruled that the attachment of movable property, excluding
agricultural produce, must be carried out through actual seizure. The officer
responsible for attaching the property must ensure that it remains in his
possession or the possession of his subordinates, and he will be held
accountable for its proper safekeeping. Seizure, in its true sense, refers to
the transfer of possession from the debtor who has been ruled against to
the court.
CONCLUSION
The stage
of execution comes into the picture when a person has already received a
judgment in his favour. However, unfortunately all his troubles do not end
there. The Supreme Court has remarked numerous times that the “difficulties of
a litigant 'begin when he has obtained a decree'”.[46]The
difficulties faced by the litigants in executing their decrees have found
recognition by multiple Law Commission Reports. The Supreme Court, taking note
of the injustice caused due to lack of timely execution of decrees, has
recently issued mandatory directions for all courts dealing with execution
proceedings.[47]
The present
paper looks at the stage of execution in a civil case and the powers that are
available to an executing Court in order to discharge its functions. The same
demonstrates the executing Court has multi-faceted powers under Section 51 of
the Code of Civil Procedure 1908 including the power of arrest and seizure of
property. While it is critical to ensure that execution proceedings are
smoothly culminated, it is equally, if not more, important to safeguard the
rights of the judgment debtor.
The same
has found place in the provisions of the Code of Civil Procedure. The proviso
under Section 51 lays down various conditions that must be fulfilled before the
personal liberty of the judgment debtor could be curtailed. The Supreme Court
has also cautioned against the arrest of judgment debtor in cases of where the
person is simply unable to pay the decretal amount.[48]
Therefore, while the focus should be to expedite the execution proceedings so
that the rights of the judgment creditor do remain illusory, the same should
not be done at the cost of dilution of judgment debtor’s rights.
LEGISLATION
Constitution
of India 1950
The Code of
Civil Procedure 1908
BOOKS
Halsbury’s Laws of England (vol 17, 4th
edn, 2009)
Jain MP, The Code of Civil Procedure (3rd
edn, 2011)
Thakker CK,
Civil Procedure (6th edn,
Eastern Book Company 2011)
CASES
Doraswamy Reddy v. Kodananda Naidu (1997) 2 AP LJ 107 (SN).
Ghanshyam Das v. Anant Sinha (1991) 4
SCC 379.
Jolly George v. Bank of Cochin AIR 1980 SC 470.
Punjab State Electricity Board v. Ramesh Kumar Gupta (2009) 16 SCC
307.
Rahul Shah v Jinendra Kumar Gandhi
2021 SCC OnLine SC 341.
S Mohan v.
Rani Ammal 2010 SCC OnLine Mad 2129.
Shyam Singh v Collector, Hamirpur 1993 Supp (1)
SCC 693.
Subrata
Roy Sahara v. Union of India (2014) 8 SCC 470.
Teeka v.
State of Uttar Pradesh AIR 1961 SC 803.
OTHERS
Anoop
Koneeri, ‘Supreme Court rejects Subrata Roy’s plea against his detention’ (Live
Law, May 2014) < https://www.livelaw.in/supreme-court-rejects-subrata-roys-plea-detention/>
accessed on 20 November 2018.
Harpreet
Kaur, ‘Arrest and detention under civil law’ < https://www.lawctopus.com/academike/arrest-and-detention-under-civil-law/>
accessed on 20 November 2018.
International
Covenant on Civil and Political Rights Art 11.
Law
Commission of India, Civil Procedure Code
1908 (54th report, 1973) 72-92 < http://lawcommissionofindia.nic.in/51-100/Report54.pdf>
accessed on 20 November 2018;
Law
Commission of India, Code of Civil
Procedure 1908 (27th report, 1964) 174-210 < http://lawcommissionofindia.nic.in/1-50/Report27.pdf>
accessed on 20 November 2018.
Law
Commission of India, Reforms of Judicial
Administration (14th report, 1958) 431< http://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf>
accessed on 20 November 2018.
[1] CK Thakker, Civil Procedure (6th edn, Eastern Book Company 2011)
587.
[2] Halsbury’s Laws of England (vol17, 4th edn, 2009) 232.
[3] Civil Procedure Code 1908, s51.
[4] ibid OXXI R37.
[5] CK Thakker, Civil Procedure (8th edn, Eastern Book Company 2017)
603.
[6] Halsbury’s Laws of England (4th edn, 2009) vol17, 232.
[7] Civil Procedure Code 1908 s36.
[8] Civil Procedure Code 1908 s38.
[9] Punjab State Electricity Board v Ramesh Kumar Gupta (2009) 16 SCC
307.
[10] (1991) 4 SCC 379.
[11] Thakker (n1) 604.
[12] Law Commission of India, Reforms of Judicial Administration (14th
report, 1958) 431< http://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf> accessed on 20 November 2018.
[13] ibid 441.
[14] Law Commission of India, Civil Procedure Code 1908 (54th
report, 1973) 72-92 < http://lawcommissionofindia.nic.in/51-100/Report54.pdf> accessed on 20 November 2018;
Law Commission of India, Code of Civil
Procedure 1908 (27th report, 1964) 174-210 < http://lawcommissionofindia.nic.in/1-50/Report27.pdf> accessed on 20 November 2018.
[15] Civil Procedure Code 1908 s51.
[16] Thakker (n1) 627.
[17] Mahadeo Prasad Singh v Ram Lochan (1980) 4 SCC 354.
[18] Civil Procedure Code 1908 s51(a).
[19] Civil Procedure Code 1908 s51(b).
[20] Civil Procedure Code 1908 s51(c).
[21] Civil Procedure Code 1908 s51(d).
[22] Civil Procedure Code 1908 s51(e).
[23] Civil Procedure Code 1908 s51.
[24] Constitution of India 1950 Art 21.
[25] Santanu Dey, ‘Legal Provisions of
Section 51 of Code of Civil Procedure 1908, (C.P.C.), India – Procedure in
Execution’ (Share Your Essays) <http://www.shareyouressays.com/knowledge/legal-provisions-of-section-51-of-code-of-civil-procedure-1908-c-p-c-india-procedure-in-execution/114388> accessed on 20 November 2018.
[26] Thakker (n1) 647.
[27] (2014) 8 SCC 470.
[28] Anoop Koneeri, ‘Supreme Court
rejects Subrata Roy’s plea against his detention’ (Live Law, May 2014) < https://www.livelaw.in/supreme-court-rejects-subrata-roys-plea-detention/> accessed on 20 November 2018.
[29] AIR 1980 SC 470.
[30] International Covenant on Civil
and Political Rights Art 11.
[31] Harpreet Kaur, ‘Arrest and
detention under civil law’ < https://www.lawctopus.com/academike/arrest-and-detention-under-civil-law/> accessed on 20 November 2018.
[32] Bhagwandas Agrawal v Shriram Govinda 1979 SCCOnLine Bom 94.
[33] Thakker (n1) 651.
[34] PG Rangnatha v Mayavaram Financial Corporation AIR 1974 Mad 1.
[35] Civil Procedure Code 1908 s58.
[36] MP Jain, The Code of Civil Procedure (3rd edn, 2011) 232.
[37] Doraswamy Reddy v. Kodananda Naidu (1997) 2 AP LJ 107 (SN).
[38] ibid.
[39] Civil Procedure Code 1908 s59.
[40] Jain (n31) 233.
[41] S Mohan v Rani Ammal 2010 SCC OnLine Mad 2129.
[42] Black’s Law Dictionary (2nd
edn) < https://dictionary.thelaw.com/seizure/> accessed 20 November 2018.
[43] Takwani (n5).
[44] Jain (n31) 247.
[45] AIR 1961 SC 803.
[46] Shyam Singh v Collector,
Hamirpur 1993 Supp (1) SCC 693.
[47] Rahul Shah v Jinendra Kumar
Gandhi 2021 SCC OnLine SC 341.
[48] Jolly George v Bank of Cochin AIR 1980 SC 470.
Article Information
EXECUTION OF DECREE UNDER THE CIVIL PROCEDURE CODE 1908: ARREST, DETENTION, RELEASE AND SEIZURE
Authors: ALIND GUPTA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/12/21
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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