Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(P&H) 1868

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Alka Sarin, J.
Gurpreet Singh & Anr. – Appellants
Versus
Sulakshna Devi – Respondent
CR-1695-2020 (O&M)
Decided On : 16-05-2022

Advocates appeared:
Mr. L.S. Mann, Advocate, for the Appellant; Mr. Gitish Bhardwaj, Advocate, for the Respondent.

The central legal point established in the judgment is the mandatory requirement for the Executing Court to give the judgment debtors an opportunity to show cause before issuing arrest/detention warrants for the execution of a money decree, as per the provisions of Section 51 of CPC and Order 21 Rule 37 of CPC.

Headnote:
Arrest Warrants - Compliance with Order 21 Rule 37 of CPC - Section 51 of CPC
Fact of the Case:

The revision petition was filed to set aside an order for conditional arrest/detention warrants issued against the petitioners without due compliance of the provisions of Order 21 Rule 37 of the Code of Civil Procedure, 1908 (CPC). The Executing Court had issued the warrants based on an application stating that no property of the judgment debtors (JDs) was traceable despite efforts made.
Finding of the Court:

The court found that the Executing Court had not complied with the provisions of Order 21 Rule 37 and Section 51 of CPC, which require giving the JDs an opportunity to show cause before issuing arrest/detention warrants for the execution of a money decree.
Issues: The main issue was the non-compliance with the mandatory provisions of law as laid down in Section 51 of CPC and Order 21 Rule 37 of CPC.
Ratio Decidendi: The court held that the mandatory provisions of law regarding the opportunity for the JDs to show cause before civil detention were not followed, and the argument that the show cause notice can be waived off was rejected due to lack of court satisfaction.
Final Decision: The impugned order for conditional arrest/detention warrants was set aside, and the Executing Court was directed to proceed with the matter in accordance with the provisions of law.

JUDGMENT

Alka Sarin, J. (Oral) - The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 17.09.2019 (Annexure P-4) whereby the Executing Court has issued conditional arrest/detention warrants against the petitioners without due compliance of the provisions of Order 21 Rule 37 of the Code of Civil Procedure, 1908 (CPC).

2. Learned counsel for the petitioners would contend that the Executing Court without due compliance of the provisions of Order 21 Rule 37 of CPC has issued conditional arrest/detention warrants of the petitioner- JDs. In support of his arguments, learned counsel for the petitioners has relied upon the judgments of this Court in the case of Didar Singh @ Dara Singh Vs. State Bank of India [2013 (1) RCR (Civil) 588] and Mohinder Singh Vs. M/s Amrik Singh Zora Singh Merchants & Commission Agents [CR No.5756 of 2019 decided on 31.10.2019].

3. Per contra, learned counsel for the respondent would contend that the Court was well within its rights to pass the impugned order inasmuch, as there were chances of the petitioner-JDs absconding. Heard.

4. In the present case, on 17.09.2019 the Executing Court had passed the following order :

"At this stage, file has been taken up again. Learned counsel for the DH has filed an application u/o 21 rule 37 CPC for issuing arrest/detention warrants of the JDs. It has been stated in the application that no property of Jds is traceable despite efforts made. All the averments made in the application are supported by an attested affidavit, therefore under these circumstances this court is left with no other legal option except for issuing conditional arrest/detention warrants of Jds which are ordered to be issued through area SHO with the direction that an amount liability of compensation approximately to the tune of Rs.3,70,000/- is outstanding against the respondents which they are bound to pay as per the MACT Award dated 27.04.2018 passed by this court. Therefore, concerned Ahlmad is directed to issued conditional arrest/detention warrants to the Jds through the area SHO if the Jds make the payment of the award under execution, then in that eventuality they be released there and otherwise Jds be arrested and be produced in court to satisfy their legal liability. Report on conditional warrants be submitted in this court on 02.11.2019."

5. A perusal of the aforesaid order reveals that there has been no compliance of the provisions of Order 21 Rule 37 and Section 51 of CPC. Order 21 Rule 37 of CPC read 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 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 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."

The provisions of Section 51 of CPC read as under:-

"51. Powers of Court to enforce execution - Subject to such conditions and limitations 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 decreed;

(b) by attachment and sale or by the sale without attachment of any property;

Click Here to Read the rest of this document