Provisions Relating Arrest & Detention by Civil Court

Arrest and detention

Question: "If the right to sue exists, it is not revoked." Explain the term with the relevant provisions of the law.

Answer:

"If the right to sue exists, it is not revoked. "Pursuant to Rule 2 of Order 22 of the Civil Procedure Code, if a case has more than one plaintiff or defendant and the right to sue exists even if one of them dies, the court records the case of death between the living plaintiff and the defendant. [No abatement by the death of the party, if right to sue survives.]

However, if the application for addition of legal representative has not been made under 176 or 177 of the Limitation Act, such suit shall be dismissed.

According to order 22, rule 2- where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.

According to rule 3 of order 22, where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

According to rule 4 of order 22, where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

According to rule 6 of order 22, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment.

Question: Discuss the provisions relating to the arrest and detention of a person by a civil court. What are the exceptions?

Answer:

Provisions as to arrest and detention:

Ss. 55-59 and rule. 37-39 of order 21 of the Code of Civil Procedure deals with arrest and detention. Moreover, rule. 1-4 of order 38 deals with arrest before judgment.

Arrest and detention:

According to section 55 of the Code of Civil Procedure:

1. A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court, and his detention may be in the civil prison of the district in which the Court ordering the detention is situate, or, where such civil prison does not afford suitable accommodation, in any other place which the Government may appoint for the detention of persons ordered by the Courts of such district to be detained:

Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling-house shall be entered after sunset and before sunrise.

Provided, secondly, that no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the officer authorized to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe the judgment-debtor is to be found.

Provided, thirdly, that, if the room is in the actual occupancy of a woman who is not the judgment-debtor and who according to the customs of the country does not appear in public, the officer authorized to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest.

Provided, fourthly, that, where the decree in execution of which a judgment-debtor is arrested, is a decree for the payment of money and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him.

According to rule 37 of order 21, where an application is for the execution of a decree for the payment of money by arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison. Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

According to rule 38 of order 21, every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the cost (if any) to which he is liable, be sooner paid.

Subsistence Allowance:

According to section 57- the Government may fix scales, graduated according to rank, race and nationality, of monthly allowances payable for the subsistence of judgment-debtors. According to rule 39 of order 21, if subsistence allowance is not paid by the decree holder, no judgment debtor shall be arrested in execution of a decree.

Arrest and release:

According to section 58 of the Code of Civil Procedure:

(1) Every person detained in the civil prison in execution of a decree shall be so detained,-

(a) where the decree is for the payment of a sum of money exceeding fifty Taka, for a period of six months, and,

(b) in any other case for a period of six weeks:

Provided that he shall be released from such detention before the expiration of the said period of six months or six weeks, as the case may be,-

(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:

Provided, also, that he shall not be released from such detention under clause (ii) or clause (iii), without the order of the Court.

(2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.

Release on the ground of sickness:

According to section 59 of the Code of Civil Procedure:

(1) At any time after a warrant for the arrest of a judgment-debtor has been issued the Court may cancel it on the ground of his serious illness.

(2) Where a judgment-debtor has been arrested, the Court may release him if, in its opinion, he is not in a fit state of health to be detained in the civil prison.

(3) Where a judgment-debtor has been committed to the civil prison, he may be released therefrom-

(a) by the Government, on the ground of the existence of any infectious or contagious disease, or

(b) by the committing Court, or any Court to which that Court is subordinate, on the ground of his suffering from any serious illness.

(4) A judgment-debtor released under this section may be re-arrested, but the period of his detention in the civil prison shall not in the aggregate exceed that prescribed by section 58.

Arrest before Judgement:

According to rule 1 of order 38-

Where at any stage of a suit, other than a suit of the nature referred to in section 16, clauses (a) to (d), the Court is satisfied, by affidavit or otherwise,

(a) that the defendant, with intend to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him,

(i) has absconded or left the local limits of the jurisdiction of the Court, or

(ii) is about to abscond or leave the local limits of the jurisdiction of the Court, or

(iii) has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof, or

(b) that the defendant is about to leave Bangladesh

- the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for his appearance. Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.

Exceptions to the provisions of arrest and detention:

According to section 56 of the Code of Civil Procedure- the Court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.

According to section 135 of the Code of Civil Procedure- No Judge, Magistrate or other judicial officer shall be liable to arrest under civil process while going to, presiding in, or returning from, his Court. This provision also applies to advocates and witnesses.

According to section 135A of the Code of Civil Procedure- no person shall be liable to arrest or detention in prison under civil process-

(a) if he is a member of Parliament during the continuance of any meeting of Parliament,

(b) if he is a member of any committee of Parliament, during the continuance of any meeting of such committee; and during the fourteen days before and after such meeting or sitting.

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