PARKASH CHAND Vs. PUNJAB NATIONAL BANK

JUDGEMENT

(1.) By this order, I am disposing of two revision petitions bearing C.R. No. 3938 of 1997 and C.R. 4022 of 1997 as the facts and point of law involved in both the cases is identical.

(2.) This petition has been directed against the order dated 16-9-1997 passed by Additional Civil Judge (SD) Dabwali. By this order, the learned trial Court has allowed the application filed by the respondent bank under Order 21, Rule 35, C.P.C. and has issued the warrants of arrest of the petitioner-judgment-debtor. Notice of this petition was issued to the respondents.

(3.) I have heard the learned counsel for the parties and have perused the impugned order as well as Order 21, Rule 37, C.P.C. which reads 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 the civil prison of a judgment-debtor who is liable to the 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 committed to the civil 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."From the provisions mentioned hereinabove it is clear that before passing an order of arrest of the judgment-debtor, the executing Court is required to issue a notice calling upon judgment-debtor to show cause why he should not be committed to the civil prison. Under proviso to Rule 37, this notice can be dispensed with if the executing Court is satisfied that the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court with the object of delaying the execution. From the impugned order, I find, though the learned trial Court has recorded the satisfaction that the payment of decretal amount cannot be recovered except by way of arrest of the judgment-debtor but no satisfaction has been recorded to the effect that the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court. In view of this, the impugned order passed by the learned executing Court is not legally sustainable. Accordingly, the petition is allowed and the impugned order dated 16-9-1997 passed by the learned trial Court is set aside. It is, however, made clear that the learned executing Court may proceed in the matter in accordance with law. With this order, the petitions stand disposed of.Petition allowed.