2007 PLP 107 (YLR)

MIAN HAMID FAROOQ, J.

Appeal in hand proceeds against order dated 24-3-2005, whereby the learned Judge Banking Court, after dismissing appellant's application issued warrants of arrest of appellant No. 1.

2. Facts relevant for the decision of the present appeal are that during the proceedings for execution of decree dated 26-8-2002, for a sum of Rs.48,19,411, passed by the learned Judge Banking Court, against the appellants, certain immovable properties belonging to the judgment-debtors were put to auction, but those could not be sold. At one stage, the learned executing Court issued warrants of arrest of the appellant No.1 and his application for recalling the warrants of arrest was rejected by the executing Court, vide order dated 15-11-2003. The appellants assailed the said order through the appeal (EFA No.510 of 2003) which was allowed by this Court, vide judgment dated 9-2-2004 and the impugned order was set aside. Lately, the learned executing Court, on 8-2-2005, again issued warrants of arrest of the judgment-debtor. The appellants filed the application for recalling of the said order, but their application was dismissed, vide impugned order dated 24-3-2005, hence the present appeal.

3. Learned counsel for the appellants contends that the warrants of arrest of appellant No.1 were issued without complying with the requirements of proviso to section 51, C.P.C. and in complete ignorance of the previous judgment rendered by this Court in EFA No.510 of 2003. Conversely the learned counsel for the respondent, while supporting the impugned order, submits that the appeal is not competent and is premature, as the warrants of arrest were never executed.

4. We, after hearing the learned counsel and examining the available record, are of the view that both the contentions raised by the learned counsel have considerable force. It is evident from the bare perusal of the impugned order that the learned executing Court, after finding that the judgment-debtors are delaying the execution proceedings and they have no bona fide claim, proceeded to dismiss their application and abruptly issued warrants of arrest of the judgment-debtor. Admittedly, the learned Banking Court issued the warrants of arrest without adhering and adverting to the provisions of proviso to section 51, C.P.C. It is settled law by now that an executing Court without satisfaction of the pre-conditions and prerequisites of proviso to section 51, C.P.C., viz. the judgment-debtor is likely to abscond or leave the local limits of jurisdiction of the Court; to obstruct the decree has transferred the property; the judgment-debtor has no means to pay the amount of decree and refuses or neglects to pay and that the decree is for a sum for which the judgment-debtor is bound in a fiduciary capacity to account to the satisfaction of the Executing Court, is not competent and empowered to issue warrants of arrest of a judgment-debtor and is precluded from passing a mechanical order in this regard. Reference can be made to Aftab Saleem Choudhary and another v. Soneri Bank Limited through Attorneys 2005 CLD 401; Messrs 3-A Trade Impex through Partner and 2 others v. Askari Commercial Bank Ltd. through Branch Manager 2005 CLD 1379 and Bashir Ahmad v. Judge Banking Court-I, Gujranwala Division Gujranwala and another 2005 CLD 1728.

5. Obviously, the learned executing Court passed the impugned order in complete oblivion and derogation of the decisions of this Court and consistent principles of law decided by this Court in the aforesaid judgments. Needless to mention that the decisions of this Court to the extent that it decides a question of law or based upon or enunciated a principle of law, are binding on all the Courts, per force of Article 201 of the Constitution of Islamic Republic of Pakistan.

6. There is another aspect of the case. The appellants, under the similar circumstances, on a previous occasion, filed the appeal (EFA No.510 of 2003). This Court, while allowing the appeal observed that "the learned executing Court would be competent to issue warrants of arrest subject to the satisfaction of conditions stated in section 51, C.P.C.". Strangely enough, the learned Judge Banking Court passed the impugned order in violation of the said observations and reiterated the legal error.

7. Seeing from any angle the impugned order suffers from grave legal infirmities and we are persuaded to set it aside.

8. In view of the above, the present appeal is allowed and the impugned order is set aside with no order as to costs. Before parting with the order, it may be observed that in case the respondent-Bank's application under section 51, C.P.C. is pending or is filed in future, the same shall be decided by the learned executing Court on its own merits and in view of the provisions of proviso to section 51, C.P.C., as discussed above. S.A.K./A-180/L Appeal accepted.