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Report No. 54

Chapter 1E

Execution

Introductory

1E.1. In the body of the Code, sections 36 to 74 deal with the subject of execution of decrees and orders. Here again, the detailed provisions are left to the rules. The important matters dealt with in the body of the Code are:-

The Courts by which decrees will be executed, questions for the court executing the decree, the modes of executing decrees, conditions for arrest, the liability of legal representatives, property exempt from attachment, and competition between rival decree-holders (rateable distribution).

Section 51(c)-Arrest in execution

1E.2. Section 51(c) of the Code of Civil Procedure authorises execution of a decree "by arrest and detention in prison". There are certain limitations, however, on this mode of execution imposed by several provisions, to be presently noticed. The question to be considered is, whether this mode of execution should be retained on the statute book, particularly in view of the provision in the International Covenant on Civil and Political Rights prohibiting imprisonment for a mere non-performance of contract.

Limitation on arrest in execution

1E.3. The existing limitations applicable to execution by arrest must be stated at the outset-

(a) First, a woman cannot be arrested in execution of a decree for the payment of money.1

(b) Secondly, even in the case of men, where the decree is for the payment of money, its execution by detention in prison is subject to important substantive safeguards.2

The proviso to section 51 is as follows:-

"Provided that, where the decree is for the payment of money, 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, 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 fot a sum for which the judgment-debtor was bound in a fiduciary capacity to account.

"Explanation-In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree."

The proviso (with the Explanation) was inserted by the amendment of 1936. Detention in civil prison cannot now be ordered as a matter of course, but only on fulfilment of the conditions in the Proviso. The object behind the amendment, it has been stated, is to protect indigent but honest debtors.3 Corresponding alterations in procedure were made (in 1936), in Order 21, rules 37 and 40.

(c) Thirdly, there is a procedural safeguard constituted by the elaborate provisions as to notice and hearing.4

(d) Finally, in certain special situations,5 release of the judgment-debtor already arrested can be ordered.

1. Section 56.

2. Section 51, proviso.

3. Detailed history of the Proviso is given later.

4. Order 21, rules 37 to 40.

5. Sections 55-59.

1E.4. Besides decrees for the payment of money1 (including a decree for payment of money as an alternative to some other relief),2 a decree for specific moveable property,3 a decree for specific performance4 and a decree for restitution of conjugal rights or injunction5 can also be executed by arrest.6

1. Order 21, rule 30.

2. Order 21, rule 30.

3. Order 21, rule 31(1).

4. Order 21, rule 31(1).

5. Order 21, rule 31(1).

6. Order 21, rule 32(1).

1E.5. There are not many restrictions of importance applicable to imprisonment in execution of decrees other than those for money.

History of the 1936 Amendment

1E.6. History of the amendment of 1936 could be stated in greater detail. The Bill was originally intended to protect industrial workers on receipt of wages less than Rs. 100 a month from arrest and imprisonment for a debt, as a result of the recommendations of the Royal Commission on Labour in India. But the Legislature thought that the protection should be applied to all persons. The statement of Objects and Reasons says1:-

"The Bill is the outcome of the recommendations of the Royal Commission on Labour in India to the effect that in the case of industrial workers in receipt of wages less than Rs. 100 a month, arrest and imprisonment for debt should be abolished except where the debtor has bee, proved to be able and unwilling to pay. The bill seeks to amend the Civil Procedure Code of 1908 so as to protect honest debtors of all classes, and not of the industrial worker class only, from detention in a civil prison and to confine such detention to debtors proved to be recalcitrant or fraudulent.

It provides inter alia that no order for execution by detention in prison shall be issued unless the debtor has been given opportunity of showing cause why he should not be committed to prison, and the Court is satisfied for the reasons recorded in writing that (1) the debtor is likely to leave the local limits of the jurisdiction of the Court, or has after the institution of the suit fraudulently disposed of his property, and (ii) that he is able to pay the amount of the decree otherwise than from projected assets. (2) The Bill applies to all judgment-debtors. After consultation with local Government, the Government of India decided that in this matter there was no sufficient reason for restricting the protection to small debtors."

1. Statement of Objects and Reasons, C.P.C. Amendment Bill, 1935 (February, 1935).

Provision in International Covenant on Civil and Political Rights

1E.7. The question to be considered is whether any change is needed in the present position. The first point is, whether the provision in the International Covenant in Civil and Political Rights, which provided1-"No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation" is violated by section 51.

1. International Covenant on Civil and Political Rights, Article 11.1.

1E.8. This question was discussed in a Kerala case, where it was held1 that the International Covenant on Civil and Political Rights does not have the force of Civil law. Individual citizens cannot, therefore, complain about breach in Municipal Courts. It was also held, that section 51(c) does not violate the above article.

The High Court observed-

"As already indicated by me, this provision (provision in the International Covenant) 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 section 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. The construction of the proviso to section 51 C.P.C. suggested by the Division Bench of this Court in Francis v. Palai Central Bank Ltd., 1959 KLJ 1036, harmonises the noble objective of the International Covenant and the provision in the Civil Procedure Code."

We agree with this view.

Whether arrest should be abolished

1E.9. The next question is, whether there is a case apart from the provision in the International Covenant for abolishing arrest in execution of a decree.

Position in England

1E.10. In England, committal to prison for failure to pay a debt ordered or adjudged to be paid has recently been abolished,1 subject to some exceptions. The exceptions include all maintenance orders and the specified Crown debts (income-tax, corporation tax, capital gain tax, selective employment tax, national insurance, national health and industrial injuries contributions and Redundancy Fund contributions). Even in these cases, the court may make an attachment of earnings order, instead of an order for committal to prison.2

1. Sections 11 and 13 read with 4th Schedule, Administration of Justice Act, 1970 (Chapter 31).

2. Sections 14(4) and 14(6), Administration of Justice Act, 1970.



The Code of Civil Procedure, 1908 Back




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