Code of Civil Procedure, 1908 / Order XXI

Order XXI Rule 39 CPC - Subsistence Allowance

Order 21 Rule 39 of the Code of Civil Procedure, 1908 governs the subsistence allowance payable when a judgment-debtor is arrested or committed to civil prison in execution of a decree. It identifies who must deposit the allowance, when it is due and how it is treated as costs.

Key principle: A judgment-debtor cannot be arrested in execution of a decree until the decree-holder deposits the amount the court considers sufficient for subsistence until the debtor can be brought before the court. Arrest and detention are also subject to the separate statutory safeguards applicable to execution.

Order XXI Rule 39 - Statutory provisions

(1) No judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder pays into Court such sum as the Judge thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the Court.

(2) Where a judgment-debtor is committed to the civil prison in execution of a decree, the Court shall fix for his subsistence such monthly allowance as he may be entitled to according to the scales fixed under section 57, or, where no such scales have been fixed, as it considers sufficient with reference to the class to which he belongs.

(3) The monthly allowance fixed by the Court shall be supplied by the party on whose application the judgment-debtor has been arrested by monthly payments in advance before the first day of each month.

(4) The first payment shall be made to the proper officer of the Court for such portion of the current month as remains unexpired before the judgment-debtor is committed to the civil prison, and the subsequent payments (if any) shall be made to the officer in charge of the civil prison.

(5) Sums disbursed by the decree-holder for the subsistence of the judgment-debtor in the civil prison shall be deemed to be costs in the suit:

Provided that the judgment-debtor shall not be detained in the civil prison or arrested on account of any sum so disbursed.

Meaning and application of Rule 39

1. Deposit before arrest

Under sub-rule (1), the decree-holder must deposit a sum fixed by the judge to cover the judgment-debtor's subsistence between arrest and production before the court. The rule does not itself authorise arrest; the legal conditions for arrest must also be satisfied.

2. Monthly allowance during detention

Under sub-rule (2), if the judgment-debtor is committed to civil prison, the court fixes the monthly subsistence allowance. It applies the scales fixed under Section 57 CPC, where such scales exist; otherwise, it fixes an appropriate amount having regard to the class to which the judgment-debtor belongs.

3. Responsibility and payment schedule

Sub-rule (3) places the duty of making advance monthly payments on the party who applied for the arrest. Sub-rule (4) requires the initial payment for the unexpired part of the month to be made to the proper court officer before committal, with later payments made to the officer in charge of the civil prison.

4. Costs cannot justify further arrest

Under sub-rule (5), subsistence payments disbursed by the decree-holder are treated as costs in the suit. Its proviso expressly prohibits arrest or detention of the judgment-debtor merely on account of those subsistence amounts.

Section 57 CPC - Subsistence allowance: Empowers the State Government to fix scales, according to rank, race and nationality, of monthly allowances payable for the subsistence of judgment-debtors. The applicable notified scales should be checked in the relevant State.

Section 58 CPC - Detention and release: Regulates the permissible period of detention in civil prison and release, including release for non-payment of subsistence allowance. Detention is not automatic merely because a money decree remains unpaid.

Section 51 CPC - Powers of court to enforce execution: Its proviso imposes safeguards before ordering detention in civil prison in execution of a money decree, including an opportunity to show cause and recorded reasons satisfying the statutory conditions.

Section 56 CPC: Prohibits arrest or detention of a woman in civil prison in execution of a decree for payment of money.

Order XXI Rules 37, 38 and 40: Address notice before arrest, the form and effect of the warrant, and proceedings when the judgment-debtor appears or is brought before the court.

For the primary legislation and amendments, consult the Code of Civil Procedure, 1908 on India Code. State amendments, applicable rules and notifications should also be checked before relying on a particular allowance rate or procedure.

Frequently asked questions

Who pays the subsistence allowance under Order 21 Rule 39?

The party on whose application the judgment-debtor was arrested must make the required monthly advance payments. Before arrest, the decree-holder must deposit the initial amount directed by the court.

Can the court order arrest without the initial subsistence deposit?

Rule 39(1) prohibits arrest in execution of a decree until the decree-holder deposits the amount the judge considers sufficient for subsistence until production before the court.

Can a judgment-debtor be detained to recover subsistence expenses?

No. Although the decree-holder's subsistence disbursements are deemed costs in the suit, the proviso to Rule 39(5) prohibits arrest or detention on account of those sums.

This article explains the central CPC provisions. Local amendments and court rules may affect their application. Last reviewed: 14 October 2026.