P L D 2000 Karachi 322 (PLP)

This is a petition against an order of the learned Banking Court No.3 at Karachi, dated 20-1-2000 where, upon an application of the respondent/decree-holder praying that the decree in their favour be executed by arrest and detention of the petitioner in prison, the learned Banking Court issued bailable warrants in the sum of Rs.1,00,000 each against the petitioner/judgment-debtor and thereafter passed an order accepting surety and P.R. Bond in the like amount submitted by the petitioner subject to the directions to deposit the decretal amount within 15 days from the order. 2- The facts necessary for disposal of this petition are not in dispute. Admittedly a decree in the sum of Rs.37,20,000 was passed against the petitioner and they did not pay the decretal amount whereupon the application for execution mentioned above was filed by the respondents. It may also be mentioned that the petitioner's application under section 12(2). C.P.C. was also dismissed by the learned Banking Court vide order dated 2-2-1999. It is also admitted that the petitioners have since gone into insolvency. Mr. Aamer Naqvi, learned counsel for the petitioner contended that an order of detention of the petitioner in prison could not be passed in the absence of pre-conditions laid down in section 51, C.P.C. and without following the procedure stipulated in Order XXI, Rule 40, C.P.C. The terms of the proviso to section 51, C.P.C. which relates to situations under which arrest and detention of a judgment-debtor can be ordered may be reproduced as under:-- "

51. Powers of Court to enforce execution --Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-- (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property; (c) by arrest and detention in prison; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require: ' Provided that execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing is satisfied."

3. In support of his contention Mr. Aamer Raza Naqvi relied upon the following observations of a Division Bench of the Lahore High Court in Precision Engineering Ltd. and others v. Grays Leasing Ltd. PLD 2000 Lah. 290: "Deeper analysis of the rules referred to hereinabove, makes it obvious that in the first instance, notice has to . be given to the judgment-debtor to explain as to why he should not be detained in prison. On his appearance the Court has to make an inquiry, record evidence, give opportunity of evidence in rebuttal and thereafter to pass an order on the request for detention in prison, in accordance with law. During these proceedings the judgment-debtor can be asked to furnish security for appearance, which does not mean security for the payment of decretal amount. Without making any inquiry the Court cannot straightaway order detention in civil prison. Likewise, unless the prerequisites of section 51 of C.P.C. are proved to exist, detention in prison cannot be ordered. The preconditions, as highlighted hereinabove, 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. Without satisfaction of these preconditions, no mechanical order for detention in prison can be passed."

4. Mr. Mansoorul Arfin, learned counsel for respondents, on the other hand, argued that the powers of an executing Court under section 18 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 were not hedged by the limitations of C.P.C. and apart from applying such provisions the Banking Court had ample powers to apply the provisions of any other law or adopt any other manner for execution of decree as it thought fit. To appreciate the contention it may be proper to reproduce section 18(1) of the above 1997 Act:-- "

18. Execution of decree.--(1) The Banking Court shall, on the written application of the decree-holder, forthwith order execution of the decree or order at any time seven days after the passing of the decree or order and, where the decree or order pertains to money, may direct that the amount covered by the decree or order, as the case may be, shall be recovered in accordance with the provisions of the Code of Civil Procedure, 1908, or any other law for the time being in force or in such other manner as the Banking Court may deem fit: Provided that the Banking Court may, at the time of passing a final decree pass an order of the nature contemplated by subsection (1) of section 16 to the extent of the decretal amount." Learned counsel further contended that '1though the precedent cited by Mr. Aamer Raza Naqvi relates to a case under 1997 Act the provisions of section 18(1) of the Act have not been considered therein. He is correct to the above extent. Nevertheless in our humble view the provisions of 1997 Act, like any other statute, have to be harmoniously construed and one cannot lose sight of the provisions of section 3 thereof which stipulates that unless expressly provided the provisions of the Act shall be in addition to and not in derogation of any law for the time being in force. It may be 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 proposition 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. In view of the above we would allow the petition to the extent that the petitioner will not be detained in prison without fulfilling the requirements of section 51, C. P. C. and Order XXI, Rule 40, C. P. C. M.B.A./A-58/K Petition allowed