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IN THE HIGH COURT OF PUNJAB AND HARYANA
KULDIP SINGH, J.
Janak Raj – Appellant
Versus
M/S Sardari Mal Des Raj – Respondent
CR No. 1526 of 2015
Decided On : 08-05-2018
Order 21, Rule 37 CPC - Execution Proceedings - Arrest of Judgment Debtor - The court set aside the order for the arrest of the judgment debtor, emphasizing that the remedy of arrest and detention of the judgment debtor is an extraordinary remedy and should be resorted to only after exhausting other available remedies for recovering the decretal amount. The court held that the procedure for selling the attached property and recovering the amount should have been followed before resorting to the extraordinary remedy of arrest.
Fact of the Case:
The decree-holder filed an application for the arrest of the judgment debtor in execution proceedings for the recovery of a specific amount. The judgment debtor's property had already been attached, and an order was passed for filing an application under Order 21, Rule 66 CPC, 1908.
Finding of the Court:
The court found the impugned order for the arrest of the judgment debtor to be wholly illegal, emphasizing that the extraordinary remedy of arrest and detention of the judgment debtor should not be resorted to at first instance without exhausting other available remedies for recovering the decretal amount. The court set aside the impugned order and allowed the decree-holder to proceed against the attached property.
Issues: The key issue was whether the order for the arrest of the judgment debtor in execution proceedings was justified, considering that the property of the judgment debtor had already been attached and an order was passed for filing an application under Order 21, Rule 66 CPC, 1908.
Ratio Decidendi: The court's decision was based on the principle that the remedy of arrest and detention of the judgment debtor is an extraordinary remedy and should be resorted to only after exhausting other available remedies for recovering the decretal amount. The court emphasized that the procedure for selling the attached property and recovering the amount should have been followed before resorting to the extraordinary remedy of arrest.
Final Decision: The impugned order for the arrest of the judgment debtor was set aside, and the decree-holder was allowed to proceed against the attached property. The revision was allowed, and any pending application was disposed of.
KULDIP SINGH, J.
1. Impugned in present revision is order dated 9.2.2015 (Annexure-P-5), passed by learned Additional Civil Judge (Senior Division), Jalalabad, vide which an application under Order 21, Rule 37 CPC, 1908, filed by decree-holder in execution proceedings for recovery of Rs. 8,37,915.08, conditional warrants of arrest of JD No. 2 Janak Raj were issued.
2. I have heard learned counsels for parties and have also carefully gone through file.
3. It comes out that amount involved in execution is more than Rs. 8,37,915.08. Interim order dated 29.10.2013 shows that warrants of attachment of property of JD were issued. As per order dated 21.2.2014, attachment was done and case was adjourned to 10.4.2014 for filing application under Order 21, Rule 66 CPC, 1908. On said date, in place of filing application under Order 21, Rule 66 CPC, 1908, decree-holder moved an application under Order 21, Rule 37 CPC, 1908 for arrest of JD, on which impugned order is passed.
4. I am of the view that impugned order is wholly illegal. Sum involved is Rs. 8,37,915.08. Once property of JD has been attached and order is passed for filing application under Order 21, Rule 66 CPC, 1908, the said procedure should have been followed to sell property and recover amount. The remedy of arrest and detention of JD is extra ordinary remedies and cannot be resorted to at first instance without exhausting other remedy available to DH is to recover decretal amount. It being so, impugned order is set aside. However, decree-holder is at liberty to proceed against attached property. Consequently, revision is allowed. Since main case has been allowed, therefore, pending application, if any, also stands disposed of.
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