2004 PLP 1540 (YLR)

Ch. Muhammad Shafi Tariq for respondent. Date of hearing: 19th September, 2003. A suit for recovery of Rs.15,000 on the basis of pronote was filed by Haji Munir Ahmad against Habib Ahmad in the Court of District Judge, Bahawalnagar, which was entrusted to the Additional District Judge Chishtian. In the above suit filed under Order 37, Habib Ullah defendant filed an application for grant of leave to appear and defend the suit. The application was allowed but Habib Ullah defendant disappeared after the grant of leave. So the suit was proceeded ex parte against the defendant and after recording the evidence of the plaintiff, the suit was decreed ex parte against the defendant with costs on 12‑2‑2002. An execution application was filed by Haji Munir Ahmad, decree‑holder in the aforesaid learned Court against Habib Ahmad, judgment‑debtor. On 4‑9‑2003, the judgment‑debtor was present. He was taken into custody and sent to judicial lock‑up by the order of learned Additional District Judge, Chishtian. This order has been assailed by the judgment‑debtor in this civil revision.

2. The grievance of the petitioner is that before ordering arrest of petitioner, the judgment‑debtor, the mandatory requirements of section 51 read with Order, 21, rule 37 of the C.P.C. were not complied by the learned Court below. Therefore, the order dated 4‑9‑2003 is prayed to be set aside.

3. On the other hand the learned counsel appearing on behalf of the decree holder submits that the judgment‑debtor has been making efforts to prolong the agony of the decree‑holder by various applications of frivolous nature. Therefore, he is not entitled to any indulgence from this Court.

4. I have heard both the learned counsel appearing on behalf of the parties. 5. section 51 read with Order, 21, rule 37 of the C.P.C. envisages the service of notice upon the judgment‑debtor to show cause as to why he should not be arrested and detained in prison in default of payment of the decretal amount. Both these provisions provide mandatory notice to show cause, which was admittedly not served upon the judgment‑debtor. From the perusal of the impugned order it appears that the learned Court below, while passing the order, was not conscious of these mandatory provisions provided by the Civil Procedure Code. If an order was to be made for the arrest and detention of the judgment‑debtor, it was essential that the application of judicial mind should have been made to the facts and circumstances of the case. The reasons, for this exceptional adoption of coercive method, must have been entered into the order which should have shown that the Court was very much conscious of the limitations of these provisions. Nothing has been found in the short impugned order to such an application. The order for arrest and detention can be passed but in the circumstances enumerated in the above‑said narrated provisions. In the instant case conduct of the judgment‑debtor was not or such a nature as to be termed as contumacious. He had admitted, in his application for grant of leave to appear and defend the suit, that he had to pay the sum A for which the suit was filed by the plaintiff. During the execution, the judgment‑debtor had conceded that he was liable to pay the amount but was trying to get some time to pay the decretal amount. From this conduct it could not be held that he was adamant to pay the amount or his conduct was contumacious. In Firm Prabhu Dyat Balkishan Dass v. Bhondu Mal and others AIR 1938 Lahore 692, it was held that contumacious conduct on the part of the judgment‑debtor is necessary for arrest. In Malik Muhammad Iqbal v. Commerce Bank Ltd. 1983 CLC 2864 the application of mind to the facts and circumstances of the case prior to the passing of an order of arrest and detention of the judgment‑debtor was held necessary. In Ghulam Hussain v. Riaz Ahmad 1987 CLC 1227 the requirement of section 51 of the C.P.C. were held to be necessarily complied with even though the judgment‑debtor had failed and neglected to pay decretal amount and there was persistent default by the judgment‑debtor in satisfaction of the decretal amount. In Mohsin Ali v. National Bank of Pakistan 1987 CLC 1419 the arrest of judgment‑debtor was set aside by the High Court in revision when the. Court had not recorded its reasons for its satisfaction to issue warrant of arrest. In Muhammad Anwar v. Shaukat Ali etc. 2000 CLC 1086, it was laid down that without the compliance of pre‑condition of section 51 the arrest and detention of judgment‑debtor would be illegal.

6. From the above referred authorities the following conclusion can be reached at:‑‑ (i) Before passing an order of arrest and detention of a judgment‑debtor the Court must be satisfied that there are reasons/circumstances to adopt such method of coercive measure. (ii) That satisfaction must be based on some facts arising from the conduct of the judgment‑debtor or from the circumstances of the case. (iii) That satisfaction must be recorded in the order.

7. In fact the provisions of section 51 and Order 21, rule 37 of the C.P.C. intend to provide an opportunity to the judgment‑debtor to pay the amount or to show cause, as to why he was defaulting to pay the decretal amount. Chance must be given to the judgment‑debtor to pay the decretal amount unless the conduct of the judgment‑debtor is not bona fide or his object is to effect the delay of the execution of the decree or the judgment‑debtor is likely to abscond or leave the local limits of the jurisdiction of the Court or after the institution of the suit, he has transferred dishonestly his property or any part of his property concealed or removed any part of his property or has done any other act or committed any act of bad faith with regard to his to fail in relief of his property so as to deprive the decree holder in the satisfaction of the decree. When these or other acts of these kinds are not found in a case, the execution Court cannot order straightway the arrest or detention of the judgment‑debtor in the execution. It may be pointed out here that these pre‑conditions are not exhaustive. There may be other conditions and circumstances of exceptional cases, which could satisfy the judicial conscience of the Court to adopt such course of arrest and detention of the judgment‑debtor in a given case.

8. In view of the above discussion, the impugned order dated 4‑9‑2003 passed by the learned executing Court is set aside and judgment‑debtor is ordered to be released from the custody of judicial lock‑up subject to furnishing of surety/security to the extent of decretal amount by the aforesaid: judgment‑debtor to the satisfaction of the executing Court. With these terms, this civil revision is accepted with no order as to costs. H.B.T./H‑8/L Revision accepted.