2003 PLP 1705 (CLD)

Through this single judgment, I intended to dispose of Writ Petitions Nos. 16661, 16981, 16980 and 20806 of 2001.

2. The petitioners are judgment‑debtors and it appears that during the execution proceedings the decree‑holder Banks prayed for their arrest and detention for recovery of the decretal amounts. The learned Banking Court readily obliged and proceeded by issuing warrants of arrest of the petitioners as judgment‑debtors. In some cases the petitioners were actually arrested and committed to civil prison and were directed to be released by way of an interim relief given by this Court.

3. The issuance of warrants of arrest by the concerned Banking Court has been challenged through these Constitutional petitions on the basis of the ratio settled in re: Precision Engineering Ltd. and others v. The Grays Leasing Ltd. PLD 2000 Lahore 290; re: Manhattan Pakistan (Pvt.) Ltd. v. Government of Pakistan and another PLD 2000 Karachi 322 and re: Pakistan through Military Estates Officer, Military Estate Office, Rawalpindi v. Abdul Aziz and another 2001 CLC 1086.

4. After hearing the learned counsel for the parties, I will agree with the learned counsel for petitioners that issuance of warrants without complying with the mandatory provisions of section 51 read with Order 21, rules 37 to 40 of the Civil Procedure Code is offensive not only to the provisions of the Code but also against the guarantees enshrined in the Constitution. All the aforesaid cases relied upon at the bar support the submissions made against the issuance of the impugned warrants of arrest.

5. Mr. Ashtar Ausaf Ali, Advocate, appearing for some of the petitioners has relied upon a judgment of Allahabad High Court in re: Ch. Harpal Sing and others v. Lal Hira Lal AIR 1955 All.

402. In that case which appears to have been a guideline in other cases relied upon at the bar by the learned counsel for the petitioners, the issue in hand was finally determined in the following terms:‑‑ "Before the Court can‑ issue a warrant of arrest or a notice to the judgment‑debtor under Order XXI, Rule 37 it has to see that the judgment‑debtor is liable to arrest in pursuance of the application for execution. This means that the nature of the decree should be such that it can be executed by the arrest of the judgment‑debtor and that such circumstances exist that an order of arrest can be made against the judgment‑debtor, in case the Court is satisfied of those circumstances. Such circumstances are what are mentioned in clauses (a) to (c) to proviso to section

51. The existence of such circumstances becomes one of the conditions to govern the liability of the judgment‑debtor to arrest. The procedure to be followed, when the judgment debtor, appears in Court, should be according to what is laid down in Rule 40 of Order XXI. The judgment‑debtor may or may not file any written reply. It is for the decree‑holder to lead his evidence in the presence of the judgment‑debtor. Such evidence should be in support of his application for execution and should have reference to the grounds which, according to the decree‑holder would justify the arrest of the judgment‑debtor, in execution of the decree, and which should be one of the grounds mentioned in clauses (a) to (c) to proviso to section

51. It is when the decree‑holder has led prima facie evidence in support of his application that the judgment‑debtor has to be given an opportunity of showing cause why he should not be committed to the civil prison."

6. Learned counsel for the Banks have not been able to support the impugned orders from any authoritative precedent or a provision of law. The only objection/ argument advanced by him was earlier considered by a Division Bench of the Karachi High Court in re: Abdul Basit Zahid v. Modaraba Al‑Tijarah through Chief Executive and 2 others PLD 2000 Karachi

322. His Lordship while interpreting the provisions of section 18 (1) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 repelled the contention that the words used in that provision "in such other manner as the Banking Court may deem fit" in any manner empower the Court to circumvent the procedure prescribed under section 51 of the C.P.C. It was observed:‑‑ "That section 51, C.P.C. provides for execution of decree through arrest and detention of a judgment debtor and the proviso thereof furnishes certain safeguards against the deprivation of liberty and contemplates that such power can only be exercised under certain given situations. In view of the above, and keeping in view the principles that statutes affecting liberty of citizens are to be strictly construed we are unable to subscribe to the provision that the words `in such other manner as it deems fit can be so broadly interpreted as to confer unbridled powers upon the Banking Courts to commit judgment‑debtor to prison without fulfilling the conditions laid down in C.P.C. Mr. Mansoorul Arfin argued that by such construction the aforesaid words would become redundant. With all respect we are unable to agree. In our humble opinion these words only mean that apart from the modes prescribed in the C.P.C. and other laws, the Banking Court may adopt any other method for execution of decrees provided the same is not repugnant to or in conflict with any existing law."

7. The provisions of section 19 providing for execution of a decree by a Banking Court in the Financial Institutions (Recovery of Finances) Ordinance, 2001 being similar to those contained in the aforesaid provisions, the observations of this Lordship hold good in respect of latest law on the subject as well.

8. Accordingly it appears to be an established proposition of law that the process for personal arrest and detention of a person cannot be issued except in the way laid down in the aforesaid provisions of the Civil Procedure Code. It needs to be noted that the question of issuance of a single mode of execution or all of them at a time is not the real issue. The issue simply being that when a Civil or Banking Court wishes to execute a decree through personal arrest and detention of a judgment‑debtor, whether as the sole or one of the alternate modes of execution of a decree, it shall be done only in the manner given in the Civil Procedure Code or any other law for the time being in force. Since there is no other law available to prescribe such mode, the provisions of section 51 read with the relevant rules of Order 21 will be attracted. Holding otherwise would mean that the judgment‑debtor in a Banking Court is a lesser citizen not entitled to the Constitutional guarantees. That idea is simply offensive to l a judicious mind.

9. Therefore, these petitions are allowed and the issuance of process for personal arrest and detention of the petitioners as judgment‑debtors without answering the codal requirements is declared to be void and illegal. These orders shall accordingly be set at naught. However, this order will not debar a decree‑holder from making a request for issuance of such process nor its actual issuance by the Court in accordance with the procedure given in section 51 read with Order 21, rules 37 to

40. C.P.C. S.A.K./M‑2044/L Petitions allowed.