2005 PLP 1379 (CLD)

Instant appeal, filed by the appellants/judgment debtors, proceeds against order dated 6-5-2004, whereby the learned Judge Banking Court dismissed appellant's application filed under Order XXI, rule 37, C.P.C. read with , section 51, C.P.C. and issued their warrants of arrest.

2. Facts necessary for the decision of the present appeal are that pursuant to passing of the decree for recovery, against the appellants, by the learned Judge Banking Court, vide judgment and decree dated 7-3-2003, the decree-holder initiated execution proceedings, during which notices under Order XXI, rule 37, C.P.C., were issued to the appellants. In response thereto the appellants filed the application under Order XXI, rule 37, C.P.C. read with section 51, C.P.C. with the prayer that show-cause notices be withdrawn. The said application, was opposed by the decree-holder and ultimately the learned Banking Court dismissed the said application and issued warrants of arrest of the judgment-debtors, vide composite impugned order dated 6-5-2004, hence the present appeal.

3. Learned counsel for the appellants has contended that the pledged goods belonging to the appellants are still in the custody of the respondent-Bank and it, despite having possession of pledged goods, is trying to execute the decree through the arrest and detention of the appellants. He has further contended that the warrants of arrest were issued by the learned Banking Court without complying with the provisions of proviso to section 51, C.P.C. He has added that the affidavit, on the sole basis of which the warrants of arrest were issued, is not admissible in evidence. He has relied upon the cases of Ghulam Hussain v. Riaz Ahmed 1987 CLC 1227; Munsif Dad v. WAPDA PLD 1991 Azad J&K 8 and Muhammad Nawaz v. Barkat All PLD 2004 Lahore

21. Conversely the learned counsel for the respondent has submitted that the bank opened letters of credit, the appellants did not retire the documents, the bank created PAD account and the question qua possession of pledged goods was decided by the learned Banking Court at the time of deciding the leave application, which cannot be reopened. He has added that the learned Banking Court after complying with the provisions of section 51, C.P.C. on the basis of the affidavit issued warrants of arrest.

4. As regards first contention of the learned counsel regarding custody of appellant's pledged goods, suffice it to say that, according to the findings of the learned Banking Court, the said question was decided at the time of the passing of the decree. The decree was challenged by the appellants, and their appeal has not yet been decided. In view of pendency of appeal, wherein dispute qua pledged goods was reportedly raised, we have refrained from giving any findings, about the said controversy. Obviously in view of the clear findings about the status of goods at the time of passing of decree, the same cannot be agitated before the learned Executing Court, moreso, as noted above, when the appeal is pending adjudication before this Court. It would be appropriate to reproduce relevant portion of the impugned order, which reads as follows: "The petitioner contention is that the goods are in possession of the decree-holder bank and the execution cannot proceed till the disposal of the above said goods. This ground was agitated in the application for leave to defend the suit and has been decided by the Court at the time of passing of the decree. It has been observed that it was the judgment-debtor who has not obtained the consignment so in these circumstances the petitioner cannot re-agitate this matter during the execution proceedings."

5. As regards next contention of the learned counsel, the same has, of course, some substance. Proviso to section 51, C.P.C. envisages that execution by detention in prison shall not be ordered unless executing Court is satisfied that the judgment-debtor had means to pay the decretal amount and he has refused to pay the amount: or that he is leaving the territorial limits of the Court or would defeat decree by transferring the property during the pendency of the Hs. It is settled law by now that the detention of the judgment-debtors, in execution of the decree, cannot be ordered unless and until pre-requisites of section 51, C.P.C. viz. the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of A the Court; to obstruct the decree had transferred the property; the judgment-debtor has 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 was bound in a fiduciary capacity to account, to the satisfaction of the executing Court are proved. Reference can be made to the judgments reported as Ghulam Hussain v. Riaz Ahmad 1987 CLC 1227; Munsif Dad v. WAPDA PLD 1991 Azad J&K, 8; Syed Shaffat Hussain v. Kamran Khokhar 2000 MLD 801; Precision Engineering Ltd. and others v. The Grays Leasing Limited PLD 2000 Lahore 290 and Muhammad Anwar v. Shaukat Ali and another 2000 CLC 1086.

6. Placing the principles of law laid down by this Court in the said cases in juxta-position with the impugned order, we feel that the learned Banking Court, while issuing the warrants of arrest of the judgment-debtors, has completely ignored the law laid down by this Court. Strangely enough, the learned Banking Court, instead of adhering to the provisions of Proviso 13 to section 151, C.P.C. and in complete oblivion of the law on the subject, proceeded to issue warrants of arrest of the judgment-debtors only on the basis of the affidavit. It is important to note that the appellants were not provided any opportunity to contradict the contents of the affidavit. The learned counsel for the appellants has rightly submitted that the affidavit ipso facto c is not admissible in evidence and its contents cannot be accepted without cross-examination of deponent.

7. In the above perspective, we have examined the impugned order and find that without satisfaction of conditions laid down in section 51, as noted above, no mechanical order for detention of a judgment-debtor in prison could be passed and thus the impugned order, to the extent of issuance of warrants of arrest of the appellants, is not sustainable in law and we are inclined to set it aside.

8. Upshot of the above discussion is that the present appeal is partly allowed and the impugned order, to the extent of issuance of warrants of arrest of the appellants, is set aside with no order as to costs. Needless to mention that in case respondent-Bank's application under section 51, C.P.C. for arrest and detention of judgment-debtors is pending or is filed in future, the same shall be decided by the learned Banking Court in accordance with law and on its own merits in view of the provisions of section 51, C.P.C. as discussed in the body of the judgment. M.H./A-451 /L Order accordingly.