2005 PLP 401 (CLD)

SYED SAKHI HUSSAIN BOKHARI, J.‑‑‑This appeal is directed against the order dated 15‑11‑2003 passed by learned Judge Banking Court No.1, Gujranwala whereby application brought by appellants for recalling order for issuance of warrant of arrest was rejected.

2. Relevant facts for the disposal of this appeal are that respondent‑Bank filed a suit for recovery of Rs.48,19,411 against the appellants and the same was decreed vide judgment dated 26‑8‑2002. The judgment -debtors failed to pay decretal amount, therefore, decree holder‑Bank filed execution petition and learned Court below passed order for auction of the property mortgaged by judgment‑debtors. However, auction could not be completed. Then notice under Order XXI, rule 37, C.P.C. was issued to judgment‑debtors and learned Executing Court issued warrants of arrest against the appellants. The appellants appeared before trial Court and filed application for recalling order for issuance of warrants of arrest. The respondent contested said application and after hearing the parties, learned Executing Court rejected the same vide order dated 15‑11‑2003. Hence, this appeal.

3. We have heard the arguments and perused the record.

4. As mentioned above suit for recovery of Rs.48,19,411 brought by respondent‑Bank against the appellants was decreed but appellants failed to pay decretal amount, therefore, respondent filed execution petition. However the property mortgaged by the judgment debtors was not auctioned, therefore, learned trial Court issued warrants of arrest of the appellants/judgment debtors. The case of appellants is that learned Executing Court had issued warrants of arrest of the appellants in violation of provisions of section 51, C.P.C. and the case of Precision Engineering Limited and others v. The Grays Leasing Limited PLD 2000 Lahore 290 and that no serious effort was made for auction of the property already mortgaged by them. According to section 51, C.P.C. the pre‑conditions for issuance of warrant of arrest are that judgment‑debtor should be proved to have made attempt to leave the limits of Court to obstruct the decree or execution thereof or dishonestly transferred the property after the institution of the suit to avoid the decree or had the means to pay the decree and neglected to do the same. So without satisfaction of these pre‑conditions no mechanical order for detention in prison can be passed. Reliance can also be placed on the case cited above. However it is clear from the record that learned Court below passed the impugned order only on the ground that property mortgaged by judgment‑debtor‑appellant could not be auctioned. The appellants have mentioned in Para. No.4 of memo. of appeal, the detail of property mentioned in 'Farad Taleeka' filed by decree‑holder‑bank and the same could satisfy the decree. As such in the circumstances of the case, there was no justification for issuance of warrants of arrest of appellants. So impugned order is not sustainable in the eye of law and the same is liable to be set aside.

5. The upshot of the above discussion is that this appeal is accepted and impugned order is accordingly set aside. However learned Executing Court would be competent to issue warrants of arrest subject to satisfaction of conditions stated in section 51, C.P.C. No order as to costs. M. H. / A‑48 / L Appeal allowed.