Issue of decree order simultaneously with arrest warrent in execution case
Bhikham Saini
(Querist) 19 October 2012
This query is : Resolved
I have a decree order of Rs.3.00lac in a money suit against an individual at Delhi,but he has moved to Rajasthan and his wife and son stays at his delhi address in a tenanted flat.His wife is the tenant.I have tried to execute the decree with the assistance of court balif and police at Delhi but his wife did not allow to take possession of any moveable article as she claimed them to belong to her personally as her stridhan and the husband,i.e the Judgement Debtor also do not stay there anymore and she has given the address of Rajasthan where the JD currently stays.Hence the execution of decree failed.His wife also submitted a petition to the court that she be not disturbed by me in the matter by me in any way.The court has issued a show cause notice to the JD at Delhi address as well at Rajasthan address as to why an arrest warrant be issued against him.His wife has refused to accept the notice at delhi address for the reason that JD do not stay there and Service at Rajasthan address is in process.
I like to know that can I still approach the court(even during pendency of the show cause notice and its reply by JD)for another Execution Order against the same decree with help of ladies police?
Is it possible for the court to issue an Execution Order again while the show cause for arrest warrant is pending?
What options are available to me in this case?
Even if JD fails can the court issue arrest warrant for JD and if yes then what shall be maximumm period of Jail and what shall be my liability in such case?
How should I resolve the issue?
Nadeem Qureshi
(Expert) 20 October 2012
Dear Querist
as per the section55. Arrest and detention.
(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 State 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 authorised 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 authorised 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.
(2) The State Government may, by notification in the Official Gazette, declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as may be prescribed by the State Government in this behalf.
(3) Where a judgment-debtor is arrested in execution of a decree for the payment of money and brought before the Court, the Court shall inform him that he may apply to be declared an insolvent, and that he 1[may be discharged], if he has not committed any act of bad faith regarding the subject of the application and if he complies with provisions of the law of insolvency for the time being in force.
(4) Where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court 2[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.
Nadeem Qureshi
(Expert) 20 October 2012
56. Prohibition of arrest or detention of women in execution of decree for money.
Notwithstanding anything in this Part, 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.
Nadeem Qureshi
(Expert) 20 October 2012
58. Detention and release.
(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 12 [five thousand rupees], for a period not exceeding three months, and]
3[(b) where the decree is for the payment of a sum of money exceeding two thousand rupees, but not exceeding five thousand rupees, for a period not exceeding six weeks :]
Provided that he shall be released from such detention before the expiration of the 4[said period of detention]-
(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.
5[(1A) For the removal of doubts, it is hereby declared that no order for detention of the judgment-debtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree does not exceed 6[two thousand rupees.]]
(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.
venkatesh Rao
(Expert) 20 October 2012
1. I am afraid you cannot get his wife arrested as there is no decree against her, muchless she is party to the proceedings.
2. Until the cause is shown, or the opportunity to show cause stage is over, the court will not normally issue warrant of arrest.
3. If at the extreme event the JD is arrested and committed to civil prison, you will have to deposit the subsistence allowance into the court, which of course, shall be recovered along with decreetal amount.
JANAK RAJ VATSA
(Expert) 27 October 2012
you should wait for the service of notice to the JD on rajashtan address.
Arun Kumar Bhagat
(Expert) 13 November 2012
Well replied by Mr. Nadeem Qureshi & Venkatesh Rao. I agree with them.
