2016 PLP 82 (CLCN)

SHAHNAWAZ TARIQ, J.

Through captioned civil revision application, applicant Mansoor Ali has impugned order dated 05.09.2015 passed by the Court of learned Additional District Judge, Kandiaro, in Execution Application No.04 of 2011, Re-Haji Liaqat Ali v. Mansoor Ali, whereby applicant has been convicted and sentenced to suffer one year simple imprisonment.

2. Relevant facts spelt out from instant revision are that respondent No.1 is a dealer of Engro Urea Fertilizer Mehrabpur Town, grain market and also commission agent. On 06.09.2007, applicant being well acquainted, approached respondent No.1, and asked him to purchase trucks of Engro Urea and DAP Fertilizer from time to time and also issued cheques against his current account No.1992-1, Muslim Commercial Bank Ltd, Mehrabpur Branch and requested to produce all the cheques for encashment on one date. Applicant used to take Urea and DAP Fertilizer on the very day whenever he issued cheques for each truck, such details are mentioned below:- Cheque No. Date Amount Bags of fertilizer 1. 34939499 06.09.2007 220,000/- 600 Urea 2. 38369601 08.09.2007 330,000/- 400 Urea 3. 38369605 20.09.2007 330,000/- 600 Urea 4. 3836907 24.09/2007 245220/- 440 Urea 5. 38369609 30.09.2007 300,000/- 550 Urea 6. 38369610 02.10.2007 400,000 750 Urea 7. 406517 29.10.2007 500,000/- 400 DAP

3. It is further averred that respondent presented the cheques in concerned bank for encashment in the month of October, 2007, but all cheques were dis-honoured with endorsement that amount not arranged for or insufficient funds in the above referred account. On 17.11.2007, respondent personally informed the applicant about the dis-honouring of the cheques and requested to pay the outstanding cash, but he refused to pay the same. Subsequently, respondent came to know that applicant had issued false cheques to many other persons and played fraud for crores of rupees. Ultimately, respondent filed Summary Suit No.11 of 2008 against the applicant for recovery of Rs.23,25,200/- before the Court learned District Judge, Naushehro Feroze, which was entrusted to the Court of learned Additional Sessions Judge, Kandiaro. Notice was issued to the applicant which was duly served upon him on 06.06.2008, and he appeared in person before the Court on 14.06.2008, and moved application under Order XXXVII, Rule 3, C.P.C. with supporting affidavits through his counsel for grant of leave to appeal to defend the suit, against which respondent filed objections in shape of counter-affidavit on 24.10.2008. It is further reflected that learned counsel for applicant took stance that respondents committed theft of some cheques of the applicant and by putting false signatures in order to blackmail the applicant, has filed said suit. Applicant filed Suit No.51 of 2008 against 28 defendants with prayer to declare that cheque books in question were stolen away by the defendants. Mst. Naziran Khatoon, mother of applicant also filed Constitution Petition before High Court of Sindh, at Sukkur Bench against Government of Sindh and 33 others with prayer to desist the respondents from causing harassment to the petitioner and her family members and to entrust the investigation of FIRs Nos.101 of 2007 and 107 of 2007, under section 489-F, P.P.C. at Police Station Mehrabpur against applicant to an impartial police officer.

4. After hearing arguments of the parties, application for leave to defend was declined and suit filed by the respondent No.1 was decreed against the applicant for recovery of Rs.23,25,200/- with mark-up at the bank rate from the date of institution of suit till realization of the decretal amount.

5. Learned Counsel for applicant contended that learned trial Court has not issued the required notice to the applicant while passing the impugned order as such, remand of applicant to Prison is illegal. Learned Counsel for applicant frankly contended that applicant had not challenged the main judgment and decree.

6. While controverting the above submissions, learned Counsel for respondent No.1 vehemently contended that applicant has filed instant revision application with mala fide intention and only to defeat the payment of outstanding amounts of the respondent; that learned Executing Court provided several opportunities for payment of decretal amount and applicant has been deliberately avoiding to pay said amount, therefore, the learned Executing Court remanded him to Civil Prison; that in compliance of earlier notice issued by the Court, applicant has been appearing before the Court, hence there was no need to issue any further notice.

7. Learned AAG supported the arguments advanced by learned counsel for applicant and contended that impugned order is bad in law.

8. Heard arguments advanced by learned Counsel for the parties and scanned the material available on record minutely.

9. Perusal of record emanates that suit filed by the respondent was decided vide judgment dated 16.05.2009 and decree dated 21.05.2009, but applicant had not challenged the impugned judgment and decree passed against him before the appellate forum, thus said judgment and decree had got finality. Consequently, respondent filed execution application for recovery of the decretal amount and notice was issued which was served upon the applicant and he made his appearance before the Executing Court and sought time which was allowed by the Court. Applicant has been appearing before the Executing Court regularly and never remained absent from the Court, nevertheless he moved applications for extension of time to pay the decretal amount which were allowed by the Executing Court, and even on 05.09.2015, he again moved such application for time for payment of decretal amount which was declined by the Executing Court and simultaneously, applicant was remanded to Central Prison for one year. The impugned order dated 05.09.2015 is re-produced as under:- "Matter called. Decree Holder along with his counsel and judgment debtor, are present. The latter again seeks time to pay the decreetal amount. The perusal of record shows that judgment debtor has failed to pay the decretal amount despite providing opportunities by this Court which shows that he is not interested to pay the same. I, therefore, turn down his request. He is ordered to suffer one year simple imprisonment. He being taken into custody, is remanded to serve out the aforesaid sentence."

10. It is significant to mention that learned Executing Court did not issue show-cause notice to the applicant prior to the arrest and detention of the applicant as contemplated under section 51, C.P.C. read with Order XXI, Rule 37, C.P.C. In absence of issuance and service of mandatory show-cause notice, the arrest and detention of applicant in Civil Prison in execution of decree is utter violation of the above referred provisions of Civil Procedure Code. There is nothing on record to show that applicant was ever served with the show-cause notice as to why he should not be remanded to jail or such notice was dispensed with as contemplated in section 51, C.P.C. read with Order XXI, Rule 37, C.P.C. Conversely, the respondent has never moved any application supported with his affidavit that applicant has been frustrating the process of execution proceedings and delaying the payment of decretal amount nor prayed for the detention of applicant in Civil Prison till realization of the decretal amount. Consequently, the Executing Court had committed serious illegality and material irregularity while passing the impugned order for the arrest and detention of applicant.

11. For the forgoing facts and circumstances, I am of the considered view that there was no lawful justification for the learned Executing Court for passing the impugned order for arrest and detention of application without issuance of show-cause notice, hence impugned order dated 05.09.2015 is set aside to the extent of arrest and detention of applicant in Civil Prison for one year. Learned Executing Court is directed to pass appropriate fresh orders in view of section 51, C.P.C. read with Order XXI, Rule 37, C.P.C. Consequently, instant Civil Revision application stands allowed. These are the detailed reasons of the short order dated 23.12.2015, whereby instant revision application was allowed. ZC/M-59/Sindh Revision allowe