2007 PLP 964 (CLD)

SH. AZMAT SAEED, J.

This constitutional petition calls in question the order dated 9-6-2005 whereby the Banking Court in execution proceedings confined the petitioner to prison.

2. Brief facts leading to this petition are that respondent-Bank filed a suit inter alia against the petitioner and others which were decreed. In execution proceedings, the mortgaged property was sold and the decree partially satisfied. Thereafter, warrants of arrest of the petitioner were obtained and executed and eventually the petitioner was brought before the executing Court and lodged in prison by way of impugned order.

3. Counsel for the parties have been heard and the record appended with this petition perused. It is contended on behalf of the petitioner that merely because a money decree has been passed against the petitioner does not automatically clothe the executing Court with the powers to detain him in the prison. It is submitted that section 51, C.P.C. provided the condition precedents which must; necessarily be fulfilled before the judgment-debtor can be lodged in prison by the executing Court. In the instant case, it is contended that said pre-conditions were neither pleaded nor even, prima facie, established prior to the issuance of the warrant of arrest of the petitioner. Furthermore, it is contended that the petitioner was not afforded an opportunity to show cause before the impugned action was taken against him. Adds that the impugned order has been passed mechanically without application of judicial mind.

4. Perusal of the record appended with this petition reveals that the contentions raised on behalf of the petitioner are not without force. There is no allegation on the record that the petitioner is guilty of any act or omission specified in section 51 C.P.C. which would make him liable for detention in pursuance of execution of a decree. No preliminary inquiry appears to have been conducted and it was not even prima facie established that the petitioner was liable to be arrested and detained. No citizen can be deprived of his liberty without due process of law.

5. I am informed that the petitioner had been released vide order dated 10-6-2005 on medical ground subject to furnishing of security of Rs.100,

000. In this view of the matter, the impugned order is set aside. Petitioner shall appear before the executing Court on the next date of hearing and the security already furnished by him shall be accepted as security for his appearance and the Court may proceed thereafter in accordance with law, subject to the objections, if any, by the petitioner.

6. The writ petition is accepted in the terms indicated ibid leaving the parties to bear their own costs. M.B.A./R-15/L Petition accepted.