Muhammad Ali vs Wali Muhammad etc.

Stereo.HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

Writ Petition No. 6111 of 2018

Muhammad Ali Versus Wali Muhammad, etc.

JUDGMENT

Date of hearing: 08.06.2021

Petitioner by: Sh. Muhammad Rafiq Goreja, Advocate.

Respondent No.1 by: Mr. Muhammad Masood Bilal, Advocate.

AHMAD NADEEM ARSHAD, J. Unnecessary details apart, the facts as divulged in this petition are the respondent No.1/plaintiff instituted a suit for recovery of Rs.30,00,000/- against the petitioner on the basis of cheque which, after full- fledged trial, was decreed vide judgment and decree dated 10.04.2010. Feeling aggrieved, the petitioner preferred an appeal before this Court, which was dismissed through judgment and decree dated 29.04.2015. Respondent No.1/plaintiff, for the satisfaction of the decree, filed an execution petition before the learned trial Court (Addl. District Judge, Burewala) which was entrusted to Civil Judge Ist Class, Burewala for further process.

During proceeding of the execution petition, the learned executing

Court issued non-bailable warrant of arrest of the judgment-debtor for the satisfaction of the decree vide order dated 17.01.2018.

Feeling aggrieved, the petitioner/judgment-debtor filed revision petition before the learned Addl. District Judge, which was dismissed vide order dated 07.03.2018. The learned executing Court in continuation of its earlier order dated 17.01.2018, issued non-bailable warrant of arrest against the petitioner/judgment- debtor vide order dated 28.03.2018 and 19.04.2018, respectively.

The petitioner assailed the aforesaid orders by invoking the writ jurisdiction.

3.Learned counsel for the petitioner states that impugned orders being illegal are liable to be set-aside; that execution petition was filed before the learned Addl. District Judge, Burewala, who erroneously entrusted the same to the learned Civil Judge, Burewala for execution in utter disregard of mandatory provision of law contained in Section 39 of C.P.C.;

that the order for arrest and detention of the petitioner /judgment- debtor was passed against the provisions contemplated by Section 51 and Order XXI Rule 37 and 40 C.P.C.; that in presence of surety’s land the issuance of warrant of arrest is violative of the provisions of law and it was just and equitable for the executing Court to evade the fate of the sale process before adopting other coercive measures against the petitioner/judgment-debtor and prayed for setting-aside of the above said orders. He relied upon

the following case laws. “HABIB AHMAD versus Haji MUNIR AHMAD” (2004 YLR 1540). “V. Ganesa Nadar v. K. Chellathai Ammal” (AIR 1989 MADRAS 8), “TALIB HUSSAIN versus Mst.

PARVGEEN AKHTAR” (PLD 2013 Lahore 129), “AZAD

GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR

through Chief Secretary versus MAHBOOB ASLAM KHAN and 4 others” (2013 CLC 300), “MUHAMMAD ANWAR versus SHAUKAT ALI and another” (2000 CLC 1086), “KAMRAN ELAHI versus JUDGE BANKING COURT and others” (2007 CLD 936), “MUHAMMAD ASHRAF versus Mst. SAFIA BIBI” (2008 CLC 1583), “PRECISION ENGINEERING LTD and others versus THE GRAY LEASING LIMITED” (PLD 2000 Lahore 290).

4.Conversely, learned counsel appearing on behalf of the respondent No.1/decree-holder strongly opposed the contentions raised by the petitioner by submitting that the learned Courts below passed the orders in question, strictly in accordance with law keeping in view the provisions of law and principles set- forth by the Apex Court and circumstances of the case; that Rs.30,00,000/- is required to be paid by petitioner/judgment- debtor but in order to linger on the execution proceedings adopting different dilly dally tactics.

5.I have heard the submissions made by both learned counsel for the parties and minutely perused the record of the

lower court with their help and able assistance and also considered the case laws referred by the petitioner.

6.From perusal of file, it transpires that complete order sheet and all the relevant documents are not available on the file.

Since the petitioner has invoked the Constitutional jurisdiction of this Court therefore, he was duty bound to annex all the relevant documents with the petition. It is easy for the Court to dismiss the petition on this ground but to do the complete justice between the parties and to decide the lis on merits, record of the learned Executing Court was requisitioned and perused.

7.It transpires from the record that the decree-holder filed the execution petition on 18.06.2015 before the learned Additional District Judge, Burewala, who passed the decree at the first instance, inter alia with the prayer that decretal amount be got recovered from the judgment-debtor; that in alternate, the decretal amount be recovered from the attachment and auction of the property of surety and for the satisfaction of the decree every legal proceeding be initiated. The learned Addl. District Judge transferred the execution petition to the Court of learned Civil Judge Ist Class for further proceedings. The Executing Court issued notices vide order dated 20.06.2015 in the name of judgment-debtor and surety. In response to the notices, power of attorney on behalf of the judgment-debtor was submitted and a request for adjournment was made in order to produce the

injunctive order issued by the District Court. On 26.10.2015, the learned Executing Court, on the verbal request of the decree- holder, with the contention that the judgment-debtor was intentionally causing delay for the satisfaction of the decree, issued non-bailable warrant of judgment-debtor. The judgment- debtor moved an application on 28.11.2015 for re-calling of the said order of issuance of non-bailable warrant and also offered that the property of the surety be attached and auctioned. The learned Executing Court vide order dated 05.01.2016 accepted the application for auction of the surety’s property and started proceeding in this regard. Thereafter, the case was being adjourned due to miscellaneous proceedings i.e, attachment of surety’s property, assessment of value of the surety’s property, auction of the surety property. In the meanwhile, the decree-holder moved an application on 03.03.2017 to the learned Executing Court with the prayer that a reference be moved before the Worthy District Judge for the entrustment of the execution petition to a competent Court. The learned trial Court, considering the no objection of the judgment-debtor’s side, accepted the application and sent the reference to the learned District Judge for proper order. The reference was put up before the learned District Judge, who vide order dated 09.03.2017 entrusted the execution petition to the Court of Mr. Syed Shuja Ali Haider, Civil Judge, Burewala for further proceedings. On 11.10.2017, when no one appeared on

behalf of the judgment-debtor, on the verbal request of decree- holder, the learned Executing Court issued show cause notice for summoning the judgment-debtor. The judgment-debtor did not appear in response to that show cause notice. Thereafter, the decree-holder requested for summoning of the judgment-debtor in person and the learned Executing Court vide order dated 22.11.2017 directed the counsel of judgment-debtor to produce judgment-debtor in person on the next date of hearing, but the judgment-debtor failed to appear before the learned executing Court, therefore, on asking of decree-holder, the learned Executing Court issued non-bailable warrant vide order dated 19.12.2017. The judgment-debtor moved an application for recalling the said order of issuance of warrant of arrest on 22.12.2017. For better understanding some past events are also relevant. On 14.09.2017, the learned Executing Court for conducting auction of the surety’s property assessed its value. The surety challenged that order while filing revision and after its dismissal, filed Writ petition No.17309-2017, whereby, this Court vide order dated 14.12.2017 suspended the operation of the impugned orders subject to notice and deposit of Rs.10,00,000/- (ten lac) within one month. On the production of this order, the learned executing court vide order dated 11.01.2018 adjourned the proceeding to 17.01.2018 for compliance of the order of the Court regarding deposit of Rs.10,00,000/- (ten lac). But the judgment-

debtor as well as surety failed to comply with the order of this Court. Therefore, on the request of the decree-holder, in continuation of the past orders i.e. 18.12.2017 and 22.12.2017, the learned Executing Court again issued non-bailable warrant of arrest of the judgment-debtor vide order dated 17.01.2018. The petitioner filed revision petition against that order which was dismissed by the learned Revisional Court vide order dated 07.03.2018. The petitioner by concealing all the past proceedings and withholding all the relevant documents, challenged the order dated 17.01.2018 of the learned Executing Court and order dated 07.03.2018 of the learned Revisional Court through the instant Writ Petition. Although, the basic orders of Executing Court regarding issuance of non-bailable warrant were 26.01.2015 and 19.12.2017 but which were not assailed by the petitioner.

8.The first objection of the petitioner was that the learned Addl. District Judge has no jurisdiction to transfer the decree before the Court of learned Civil Judge Ist Class under Section 39 of C.P.C.

9.The decree-holder was conscious of the objection of the judgment-debtor; therefore, he moved an application before the learned Executing Court that a reference be put forward before the Worthy District Judge for the entrustment of the execution petition to a competent Court. The learned Executing Court, in the light of no objection from the judgment-debtor’s side, accepted

the application vide order dated 03.03.2017 and forwarded the reference to the Worthy District Judge for proper order, who vide order dated 09.03.2017 entrusted the execution petition to the Court of Mr. Syed Shuja Ali Haider, Civil Judge for further proceedings. In this way, the proceedings conducted after 09.03.2017 was in the light of the transfer order of Worthy District Judge, who was competent to transfer the proceedings under section 24 of the Code of Civil Procedure, 1908. Now coming to the legal question, whether the Court of first instance, who passed the decree, is competent to transfer the decree/execution petition to any other competent Court for satisfaction of the decree and further progress. The decree of the Court of last instance is to be executed, as the decree of the Court of first instance merged into the decree of last instance. The Court of first instance who passed the decree has jurisdiction to execute it himself or transfer it to a competent Court. A decree may be executed either by the Court to which passed it as defined in section 37 of the C.P.C. or by the Court which it is sent for execution under section 39 of C.P.C. It may also be executed by the Court to whom the proceedings were transferred under section 24 or section 150 of C.P.C.

10.The decree-holder filed execution petition on 18.06.2015 before the Court of learned Addl. District Judge, who passed the decree at first instance. The learned Addl. District

Judge, after receiving the execution petition, transmitted it to the learned Civil Judge Ist Class, for further proceedings in the following terms vide order dated 18.06.2015.

ابتدائ بحث سماعت بادی النظر میں کونسل ڈگریدار کا-"کونسل ڈگری دار حاضر موقف درست معلوم ہوتا ہے۔ لہذا درخواست ہزا بغرض سماعت فاضل عدالت جناب مرزا محمد اعظم صاحب سول جج درجہ اول بورے واال سپرد کی جاتی ہے۔ ڈگری روبرو فاضل عدالت پیش ہوے۔26.06.2015 دار کو ہدایت ہوی کہ بتقرر Bare reading of above order reflects that the learned Addl.

District Judge did not transfer the decree, but he only transferred the execution proceedings for further progress. As already discussed, the Court has jurisdiction to execute the decree itself or through any other Court to whom it is sent.

11 In order to better appreciation Sections 37, 38 and 39 of Civil Procedure Code, 1908 are being reproduced as under:

“Sec. 37.---Definition of Court which passed a decree.--- The expression “Court which passed a decree,” or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,--

(a)Where a decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b)Where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decrees was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

“Sec. 38 Court by which decree may be executed.

A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.”

“Sec.39 Transfer of decree.---(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court,--

(a)If the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or (b) If such person has no property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Courts or

(c)If the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it or

(d)If the Court which passed the decree considers for any other reason which it shall record in writing, that the decree should be executed by such other Court

(2)The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.”

From the bare reading of above quoted provisions, it appears that a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. Section 39 of the C.P.C. deals with the transfer of decree. There are two parts of Section 39 of the C.P.C. Subsection (1) of Section 39 of the C.P.C. deals with transfer of a decree on the application of decree-holder and Subsection (2) of Section 39 of the C.P.C.

empowers the court passing decree to send it for execution to any subordinate Court of competent jurisdiction. In subsection (1) of Section 39 of the C.P.C. four described eventualities, have been explained in (a), (b), (c), and (d) when the decree-holder can apply

for the transfer of decree. In subsection (2) of Section 39 of the C.P.C. the Court, who passed the decree, is competent to send it for execution to any subordinate Court of competent jurisdiction.

The words “Subordinate Court” and “Competent Jurisdiction” are significant. Necessary conditions for sending a decree for execution to another Court are that it shall be a Court of subordinate to the Court which passed the decree and secondly that it shall be a Court of competent jurisdiction. The jurisdiction may be territorial and pecuniary and competent jurisdiction may be that the Court has power to try the suit and jurisdiction to execute the decree. Keeping in view the legal proposition as described in Sections 37, 38 and 39 of the C.P.C., the learned Additional District Judge has jurisdiction to send the decree/execution petition for its execution and further proceedings to the subordinate Court, who is also a competent Court as has possessed the territorial and pecuniary jurisdiction. Therefore, the contention of learned counsel for the petitioner has no force.

Learned Executing Court has the jurisdiction to adjudicate the decree and the execution petition was rightly sent by the court of first instance for further progress.

13.The second objection of the petitioner is that non- bailable warrant issued by learned Executing Court is against the mandatory provisions of Order XXI Rule 37, 40 and Section 51 of the C.P.C. There may be two types of proceedings before the

executing Court. Firstly, for making presence of the judgment- debtor before the Court and secondly, for sending him to the jail for the satisfaction of the decree. The learned counsel appearing before the Court tried to mix-up both the situations in order to get a favourable order.

For the satisfaction of a decree, the executing Court, after institution of the execution petition, issues a notice to the judgment-debtor for a day to be specified in the notice and asks him why he is not paying the decretal amount and warn him, if he will not pay the decretal amount, he should be detained in prison.

If he fails to appear in response to that notice, then the Court is empowered to issue a warrant of arrest. This procedure is provided in Order XXI Rule 37 of C.P.C. which is as under:- “37. Discretionary power to permit judgment-debtor to show cause against detention in prison,-- (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in [-] prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court, [shall], instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be [detained in] prison;

[Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.]

(2)Where 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 the judgment-debtor.”

High Court Amendment Lahore (22.08.2018):

For rule 37, the following shall be substituted:

“37. Discretionary power to allow judgment-debtor an opportunity to show good cause against detention in prison.-

(1)Notwithstanding anything in the rules, where a decree for the payment of money is sought to be executed through arrest and detention in prison of the judgment- debtor, the Court may, before issuing a warrant of arrest, provide one opportunity to the judgment-debtor to show good cause as to why he should not be detained in prison:

Provided that such opportunity shall not be necessary if the Court is satisfied, by affidavit or otherwise, that, with the object of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.”

(2)Where the judgment-debtor fails to avail himself the opportunity or is unable to show a good cause, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.”

The Lahore High Court, Lahore, while introducing amendments in the Code of Civil Procedure, 1908, on 22.08.2018 substituted order XXI Rule 37 C.P.C. Although this amendment is notified and implemented w.e.f. 01.11.2020, however, this amendment is not applicable upon the case of the petitioner as it was notified much after the date of impugned orders.

When the judgment-debtor, in obedience of the notice or after arrest appears before the Court, then the Court, after hearing the decree-holder and taking all evidence in support of the execution application, provides an opportunity to the judgment- debtor to explain his position why he is not satisfying the decree

and warned, if he will not pay the decretal amount, he shall be detained in prison. After completion of the inquiry, the Court will make an order for detention of the judgment-debtor in prison subject to the provision of section 51 of C.P.C. For better understanding, the order XXI Rule 40 C.P.C. is being reproduced as under: -

“40. Proceedings on appearance of judgment-debtor in obedience to notice or after arrest. -- (1) when a judgment-debtor appears before the Court in obedience to a notice issued under rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the judgment-debtor an opportunity of showing cause why he should not be [detained in] prison.

(1)Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of section 51 and to the other provisions of this Court, make an order for the detention of the judgment-debtor in [-] prison and shall in that event cause him to be arrested if he is not already under arrest:

Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied.

(2)A judgment-debtor released under this rule may be re- arrested.

(3)When the court does not make an order of detention under sub-rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release.]

In Order XXI Rule 40 C.P.C. it has been mentioned that the order of detention in prison is made subject to section 51 of C.P.C., which means that detention order in prison be made if the conditions specified in section 51 C.P.C. are fulfilled. Before further discussion, it is better to go through section 51 C.P.C.

which reads as under:-

“51. Powers of Court to enforce execution. – Subject to such conditions and limitation 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 decree:

(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, 2*** 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 or 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.”

It has clearly been mentioned in section 51 of the Code of Civil Procedure, 1908 that before passing an order of detention of judgment-debtor in prison, the Court is bound to record the reasons in writing that he is satisfied that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree is likely to abscond or leave the local limits of the Court, or has, after the institution of the suit, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or has the means to pay the amount of decree or some substantial part thereof and refuses or neglects or refused or neglect to pay the same or the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity of account. The division Bench of this Court in its judgment reported as “MUHAMMAD ANWAR versus SHAUKAT ALI and another” (2000 CLC 1086) explained it as under: -

Order 21, Rule 37 of C.P.C. contemplates that where an application is for execution of decree for payment of money by arrest and detention in prison of the judgment- debtor, who is liable to be arrested in pursuance of an application, the Court shall, instead of issuing a warrant, for his arrest, issue a notice calling upon him 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 C.P.C. provides that if appearance is not made in obedience of the notice, the

Court shall, if the decree-holder so requires, issue a warrant for arrest of the judgment-debtor. Under Rule 40 or 41 of C.P.C., when the judgment-debtor appears before the Court in obedience of the notice or is brought before the Court, after being arrested in execution of decree, the Court is required to proceed for hearing the decree-holder and to, take such evidence as may be produced by it in support of the application for execution, where after the judgment-debtor has to be given an opportunity of showing cause why he should not be detained in prison. Pending conclusion of the inquiry, the Court has the discretion to order that the judgment-debtor be detained in custody of an officer of the Court or be released on furnishing of security to the satisfaction of the Court, for his appearance when required. It is only after the conclusion of inquiry that the Court can order for the detention of judgment- debtor in prison, which order will be subject to the satisfaction of pre-conditions of section 51 of C.P.C. Section 51 of C.P.C. requires existence of certain pre- conditions to detain the judgment-debtor in prison. Proviso to section 51 of C.P.C. contemplates that the execution by detention in the 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 to be recorded in writing is satisfied that the judgment-debtor, with the object of obstructing or delaying execution of decree, is likely to abscond or leave the local limits of jurisdiction of the Court or has, after institution of the suit, in which 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 the judgment-debtor has or has had since the date of decree, the means to pay the amount of decree or substantial part thereof and refuses or neglects or has refused or neglected to pay the same or that the decree is for a sum for which the judgment-debtor was found in fiduciary capacity of account.”

15.In this case, from the perusal of record, it appears that non-bailable warrant of arrest was issued in the name of petitioner/judgment-debtor for just procuring his attendance. The learned Executing Court, first time issued the non-bailable warrant of judgment-debtor on 26.10.2015 and it was repeated on 30.11.2015 but thereafter this process was withheld on the

application of judgment-debtor, when he offered for the attachment and auction of the property of surety for the satisfaction of the decree but thereafter he himself created hurdle to stop the attachment process and auction proceedings by moving different types of applications. The decree-holder, keeping in view the behavior of the petitioner, requested for issuance of show- cause notice to the judgment-debtor for satisfaction of the decree but in-spite of issuance of that show-cause notice, the judgment- debtor failed to appear. Thereafter, on the request of decree-holder, learned Executing Court directed the learned counsel for the judgment-debtor to produce the judgment-debtor in person but inspite of that order, neither the judgment-debtor was produced nor he himself bothered to appear before the Court. Therefore, keeping in view all the facts and circumstances of the case, in order to procure his presence, the learned Executing Court issued non-bailable warrant of judgment-debtor vide order dated 19.12.2017. After scanning of complete order sheet, it reveals that issuance of non-bailable warrant was only for personal attendance of judgment-debtor. Order XXI Rule 37(2) of the C.P.C. clearly suggests that where the appearance of judgment-debtor is not made in-spite of issuance of notice, the Court has power to issue warrant for the arrest of judgment-debtor. The exact wording of order XXI Rule 37(2) C.P.C. is as under: -

“Where 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 the judgment-debtor.”

The order of learned Executing Court regarding issuance of non-bailable warrant to procure the attendance of judgment debtor is also quite in accordance with law.

16.Epitome of above discussion is that the impugned orders passed by both the learned lower Courts are in accordance with law. Learned counsel for the petitioner has failed to point out any irregularity or illegality in these orders warranting interference by this Court in exercise of its constitutional jurisdiction. Both above said orders are hereby upheld. Resultantly, the instant writ petition being without any force is hereby dismissed. No order as to costs.

(AHMAD NADEEM ARSHAD)

JUDGE

Approved for Reporting

Judge

A.Razzaq*