Executing a decree by putting the JD in civil prison
The purpose of this write up is to discusses the mode and procedure for putting a judgment debtor (JD) in civil prison, as part of execution of a decree, when he is unable to satisfy the decree against him.
Arrest & detention in civil prison
The arrest and detention of the JD in a civil prison is one of the modes of execution of a decree for payment of money, exceeding Rupees two thousand.
Mere omission to pay cannot result in arrest or detention of the judgement debtor. There must be some element of bad faith, an attitude of refusal on demand or disowning of the obligation under the decree.
Notice to JD to appear before the court
When decree holder files an application, along with an affidavit, stating the grounds for arrest and detention, the court will issue a notice to the judgment debtor to appear before the court on a day and show cause why he should not be committed to civil prison.
No notice as above is required if the judgment debtor is likely to abscond or leave the local jurisdiction of the court.
JD appears & pleads no means
If judgment debtor appears, pleads and prove he has no means to pay the amount, he will not be arrested.
When he appears, what the decree holder is required to prove is that the judgment debtor has or had, since the date of the decree, the means to pay the decree amount or some substantial portion of it and he refused or neglected to pay.
Issue of warrant when JD does not appear
On the other hand, if the judgement debtor does not appear when required, the court will issue warrant.
If the judgment debtor is a government officer, a notice is to be issued to his superior before arresting the officer.
Who all cannot be arrested?
Women, judicial officers, the parties or the pleaders going to attend or returning a court, members of legislative bodies, any person whose arrest might be attended with danger or inconvenience to the public, and the Judgment Debtor if the amount does not exceed Rs 2000/, cannot be arrested or detained in civil prison as part of execution of a decree (See Sections 56, 58, 135 & 135 A of the CPC).
What to do in case of unexecuted warrant?
When a warrant of arrest is returned unexecuted it will be notified in the notice board.
If there is sufficient time before the date of hearing for execution of warrant, fresh warrant may be issued on payment of process fee by the decree holder.
JD can apply to be declared as insolvent
When a judgment debtor, who is arrested for payment of money in a decree and brought before the court expresses his intention to apply to be declared an insolvent and furnishes security instead, the court may release him from arrest.
But if he fails to do so within one month the security will be realised and he will be committed to prison. The court should not order arrest and detention if the judgment debtor has no means to pay.
Precautions to be taken when arresting JD
A judgment debtor may be arrested at any time and any day, but no dwelling house may be entered after sunset or before sunrise for the arrest. No outer door of a dwelling house may be broken open unless it is in the occupancy of the judgment debtor.
Procedure of putting JD in civil prison
Judgment debtor will be put to civil prison, after conducting medical examination at the judgment debtor’s or decree holder’s expenses, and the detention will be for three months only.
Re-arrest of the judgement debtor, once released, is not normally possible. If the release is because of a mistake or due to non-payment of subsistence allowance, or on the ground of his illness, then rearrest of the judgement debtor is permissible.
The decree holder will have to pay Travelling Allowance for accompanying peon, Rs 10 per diem towards the subsistence allowance, Rs 50 for bedding charges and conveyance charge for the debtor from court to prison and prison to his residence on release as the court fixes.
JD will be released when payment is made
When the judgment debtor pays the decretal amount with cost he should be released at once. The judgment debtor arrested or committed to prison or under warrant of arrest will be set free on the ground of his serious illness. The state government can release a person detained in civil prison on the ground of any infectious or contagious disease.
The Civil Rules of Practice, Kerala, the rules framed under the Code of Civil Procedure, state that if the judgement debtor is sick when he is in civil prison he will have to be treated at the cost of decree holder, and if his sickness is in a bad condition he should be released.
Further reading
- The Code of Civil Procedure, 1908
- The Civil Rules of Practice, Kerala
- Jolly George Verghese & Anr v The Bank of Cochin
