Constitutionality Of Provisions on Powers of Arrest & To Impose Costs of Arrest Under the CPC
By Vaibhav Kartikeya Agrawal, Advocate.
Abstract
Code of Civil Procedure (hereinafter 'CPC') is the parent law to provide procedure for adjudication of suits of civil nature all over the territory of India. Order XXI of CPC provides procedure for 'execution' of decree. Rule 30 of Order XXI of CPC provides that the decree for payment of money can be executed by arrest of judgment debtor or attachment of its property or by any of these means. Section 55 of CPC provides procedure for arrest and detention of the judgment-debtor in execution of a decree for payment of money. Proviso four to section 55 of CPC entails costs of arrest upon the judgment-debtor even after fulfilment of the decree for payment of money. This paper endeavours to contemplate the constitutionality of such imposition of the 'costs of the arrest' upon the judgment-debtor. The paper further endeavours to analyze the constitutionality of sub-rule (2) of rule 37 of Order XXI of CPC which mandates the Court of execution to issue a warrant of arrest to the judgment debtor in execution of the decree for payment of money on application of the decree holder. In my view, the observations and analysis in this paper would add to the legal jurisprudence.
