Affidavit for Arrest of Judgment Debtor under Order 21 Rule 37 CPC

Affidavit for Application to arrest, detain in Prison Judgement Debtor as per order XXI Rule 37 of The Code of Civil Procedure.

MR. ____________

…………..Decree holder

VERSUS

MR._____________

…………………. Judgement debtor

AFFIDAVIT

I, __________________________, aged about ________________ years, son of ___________________________, presently serving as General Manager Accounts of __________________ Ltd., do hereby solemnly affirm and declare as follows:

1. That I am the General Manager of Accounts of the plaintiff company, fully familiar with the facts and circumstances pertaining to the present matter and duly authorised to swear this affidavit on behalf of the plaintiff company.
2. That the plaintiff company has secured a decree against the judgement debtor for recovery of a sum of Rs. ____________________ along with interest and costs. The judgement debtor is known to own considerable landed properties and sufficient liquid assets, enabling him to discharge the decretal liability in one instalment. He has sold the attached property for a significant amount and also holds substantial movable assets at his business premises operated under the name and style of M/s ___________________________ Ltd. He is fully capable of satisfying the entire decree amount at once.
3. Therefore, it is just and necessary that this Hon'ble Court be pleased to issue notice under Order XXI Rule 37 of the Code of Civil Procedure, 1908, directing the judgement debtor to show cause why he should not be committed to civil prison in execution of the decree.

DEPONENT

I, _______________________________________, the above-named deponent, hereby verify that the statements made in this affidavit are true and correct to my personal knowledge and that nothing material has been concealed or misstated herein.
Verified at New Delhi on this _____________________ day of ___________________, 20.

DEPONENT

Purpose

It is filed when a person (appellant) has lost a case in the trial court and filed a first appeal in the High Court, but the winning party (respondent) is already trying to execute the decree (collect money, attach property, etc.). The affidavit supports an application to stay execution of the decree until the appeal is decided.

When it is used

• After the trial court passes a decree against you (e.g., payment of money, possession of property).
• You file a First Appeal under Section 96 CPC.
• The decree-holder starts execution proceedings.
• You request the appellate court to pause execution to prevent hardship and injustice until the appeal outcome.

Key points

• Filed with Miscellaneous Application under Order XLI Rule 5 CPC.
• Grounds: financial hardship, irreparable loss, balance of convenience.
• Without a stay, an appeal may become meaningless if a decree is enforced.
• Court has discretion; stay is not automatic.
• Often a court may order a security deposit/bank guarantee before granting a stay.

FAQs

Q1. Is filing an appeal enough to stop execution of decree?

No. Mere filing of an appeal does not operate as a stay. You must file a stay application with an affidavit. [Order XLI Rule 5 CPC].

Q2. Can the decree-holder still execute the decree if an appeal is pending?

Yes, unless a stay is specifically granted by the appellate court.

Q3. What happens if a stay is granted?

Execution proceedings are halted till the appeal is decided, subject to conditions imposed by the court.

Q4. What conditions can the court impose while granting a stay?

The court may ask the appellant to deposit the decretal amount, furnish security, or comply with other terms to safeguard the decree-holder's rights.

Q5. If a stay is rejected, what can the appellant do?

The appellant may approach the Supreme Court under Article 136 or file a fresh application with stronger grounds.

Q6. Is financial hardship a valid ground for a stay?

Yes, courts consider balance of convenience, financial capacity, and irreparable loss, along with prima facie merits of the appeal.

Q7. Can a stay be partial?

Yes. The court may stay part of the decree (e.g., only execution against property, but not recovery from a bank account).

Q8. Where is such an affidavit filed?

In the High Court (or District Court if the appeal lies there), along with the stay application in the pending appeal.