2015 PLP 1904 (CLD)

M. SOHAIL IQBAL BHATTI, J.

Through this appeal, the appellants have challenged the order dated 18-11-2011 passed by the learned Judge Banking Court No.IV, Lahore.

2. The facts of the case are that the respondent bank filed a suit for recovery of Rs.4,13,573.46 against the appellant on 8-9-2008. The judgment and decree were passed against the appellant on 16-9-2009 and thereafter the decree was converted into execution petition.

3. The learned Judge Banking Court issued a show cause notice to the appellant for 5-3 2010 under Order XXI, Rule 37 of C.P.C. as to why the appellant be not committed to civil prison.

4. The appellant appeared before the learned Judge Banking Court and filed a reply to the show cause notice and the learned Judge Banking Court, after recording the statement of the appellant to the effect that he has suffered huge losses in his business and is unable to repay the decretal amount, passed the impugned order on 18-11-2011, hence this appeal.

5. The learned counsel for the appellant argued that the learned Judge Banking Court has not conducted any inquiry before passing the impugned order nor the pre-requisites mentioned in section 51 of C.P.C. have been complied with before passing the impugned order dated 18-11-2011. On the other hand, the learned counsel for the respondent/decree holder bank argued that since the judgment-debtor was under an obligation to pay the decretal amount, the order dated 18-11-2011 has been rightly passed by the learned Judge Banking Court; he has further argued that since no immovable property of the appellant/judgment-debtor was available, the only recourse which could have been followed by the learned Judge Banking Court was to commit the appellant to civil prison.

6. We have considered the arguments advanced by the learned counsel for the parties and perused the record.

7. At this stage, we would like to reproduce section 51 which reads as under:- "

51. Powers of Court to enforce execution.

Subject to such conditions and limitations as may be prescribed, in 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-- (a) That the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,- (i) Is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) Has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or (b) That the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses to neglects or has refused or neglected to pay the same, or (c) That the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. Explanation.

In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree."

8. Unless the pre-requisite of section 51 of C.P.C. are proved to exist, detention in prison cannot be ordered. The pre-conditions, as highlighted above, are that the judgment-debtor should be proved to have made attempt to leave the limits of the Court, to obstruct the decree or execution thereof or dishonestly transferred the property after institution of the suit to avoid the decree or that he has means to pay the decree but neglected to do the same. Without satisfaction of these pre-conditions, no mechanical order for detention in prison can be passed.

9. At this stage, it would also be beneficial to refer to the scheme of Order XXI, Rule 37 of C.P.C. and Rule 40 and Rule 41 of C.P.C. Rule 37 of Order XXI of C.P.C. contemplates that where an application is for the execution of the decree for payment of money by arrest and detention in prison of the judgment-debtor who is liable to be arrested, the Court shall, instead of issuing a warrant of arrest, issue a notice calling upon the judgment-debtor to appear in Court and to show cause, why he should not be detained in prison. Notice can be dispensed with only if the Court is satisfied by affidavit or otherwise that with the object of delaying execution of decree, the judgment-debtor was likely to abscond or leave the local limits of jurisdiction of the Court. Sub-Rule (2) of Rule 37 of Order XXI of C.P.C. provides that if appearance is not made in obedience to the notice, the Court shall if the decree holder so requires issue a warrant for the arrest of judgment-debtor. Under Rule 40 or 41 of Order XXI of C.P.C. when the judgment-debtors appears in the Court in obedience of the notice or is brought before Court, after being arrested in execution of decree, the Court is required to proceed for hearing of the decree holder and to take such evidence as may be produced by it in support of the application for execution, whereafter the judgment-debtor has to be given an opportunity of showing cause why he should not be detained in prison. It is only after the conclusion of the inquiry that the Court can order for detention of judgment-debtor in prison which order will be subject to the satisfaction of the pre-conditions of section 51 of C.P.C.

10. Proviso to section 51 of C.P.C. contemplates that the execution for detention in prison shall not be ordered and the judgment-debtor should not be committed in prison unless the Court is satisfied, which reasons shall be recorded in writing that the judgment-debtor with the object of obstructing or delaying the execution of the decree, is likely to abscond or leave the local limits of the jurisdiction of the Court or has after institution of the suit in which decree has been passed dishonestly transferred, concealed or removed any part of his property or committed any other act of bad faith in relation to his property or the judgment-debtor has, or has had since the date of decree, the means to pay the amount of decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same. Without making an inquiry, the Court cannot straight away order detention in the civil prison.

11. We have observed that the impugned order is lacking all the ingredients which are sine qua non for committing the judgment-debtor to civil prison.

12. For what has been discussed above, this appeal is allowed. The impugned order dated 18-11-2011 passed by learned Judge Banking Court No.IV, Lahore is set aside. The case is remanded back to the learned Judge Banking Court with the direction to pass fresh order after complying with the mandatory provisions of law. MH/M-22/L Case remanded.