2003 PLP 686 (CLD)

Rao Aman Ullah Khan for Defendant. Date of hearing: 26th June, 2002. Through this civil revision, judgment-debtor Muhammad Iqbal has challenged the order of the executing Court dated 26-4-2002 whereby the executing Court has accepted the application filed by the decree-holder Haji Shaukat Ali dated 16th of February, 2002, for the arrest and detention of judgment-debtor in the civil prison in execution of the decree.

2. Brief facts of the case are that respondent Haji Shaukat Ali filed suit for recovery of Rs. 12 lacs against the petitioner on the basis of negotiable instrument. The suit was decreed in favour of Shaukat Ali respondent vide judgment and decree dated 4-10-2000. The decree-holder filed execution petition. In execution petition, the judgment-debtor filed objection petition. The objection petition has been contested by the decree-holder. During the pendency of the above-referred objection petition on 16-2-2002, the decree-holder also filed above-referred application for causing the arrest of judgment-debtor while order of attachment of his property has already been issued. The application was duly contested by the judgment-debtor. The learned District Judge as executing Court has passed the impugned order while deciding the said application in the following terms:-- "All these circumstances show that execution of decree is not possible through usual mode of proceedings. The conduct of judgment-debtor shows that he is flouting the decree through different means. Circumstances of the case warrant that decree be executed by detention of the judgment -debtor in civil prison. Application of the decree-holder is, therefore, accepted and accordingly warrant of judgment-debtor be issued. He be kept in civil prison and produced in Court on 10-5-2002. In case, decree-holder satisfies the decree prior to the date fixed, he shall be released forthwith." The learned counsel for the petitioner has argued that no doubt the proceedings of attachment of the property of judgment-debtor as well as arrest and detention of the judgment-debtor can be passed but the order of arrest and detention of the judgment-debtor can be passed as contemplated under section 51 read with Order 21, rule 37, Civil Procedure Code after serving show -cause upon him while in this case, an application was moved for causing his arrest only which was duly replied by the petitioner and the petitioner had been appearing before the executing Court but no show-cause notice had ever been issued to the petitioner/judgment-debtor for his arrest and detention in civil prison in execution of decree. Further argued that the decree-holder had never prayed in his application dated 16-2-2062 for the arrest and detention of the judgment-debtor in civil prison till the execution of the decree. Hence the impugned order is beyond the prayer of the decree-holder made in his application. On the other hand, the learned counsel for the decree-holder had argued that the judgment-debtor is avoiding the execution of the decree; he has been consistently absented from the executing Court despite his surety bond, hence, the impugned order is in accordance with law. Further argued that the judgment-debtor 'is playing game of hide and seek to avoid the execution of the decree. Heard. Record perused. There is no cavil to the proposition that judgment -debtor can be arrested and sent to civil prison in execution of the money decree till the execution of the decree as contemplated under section 51 read with Order 21 rule 37, Civil Procedure Code. But there are prerequisites for such an arrest and detention. In the case in hand, the judgment-debtor had been appearing before the executing Court on certain dates but there is nothing on the record to show that he was ever served with a show-cause notice as to why he should not be sent to jail or such notice has been dispensed with as contemplated by law i.e. section 51 read with Order 21, rule 37, Civil Procedure Code. Furthermore in the application of the decree-holder dated 16-2-2002, the decree-holder has never prayed for the detention of the judgment-debtor in civil prison till the execution of the decree. In the circumstances, the impugned order dated 26-4-2002 is not sustainable in law. Therefore, this revision petition is allowed and the impugned order dated 26-4-2002 is hereby set aside to the extent of arrest and detention of the judgment-debtor in civil prison till the completion of the decree. However, the parties are left to bear their own costs. Needless to add that, if need be, the executing Court would be well within his powers to pass a fresh order for the arrest and detention of the judgment-debtor in civil prison under section 51 read with Order 21, rule 37, Civil Procedure Code in accordance with law and the procedure laid down therein and this order in no way fetters the powers of the executing Court. S.M.A.H./M-1402/L Petition allowed.