The court emphasized the necessity of following procedural requirements under Order 21 Rule 37 CPC before issuing warrants for arrest, particularly ensuring that the decree holder files an application for execution.

Judgment

Ms. Amarjot Bhatti, J. (Oral):- The petitioners have filed civil revision petition under Article 227 of the Constitution of India for setting aside the order dated 01.07.2023, Annexure P-8, passed by Additional Civil Judge (SD) Jagadhari in Exe/53/2019 titled as “State Bank of Patiala now State Bank of India Vs. Akash Sharma and another” in which conditional warrants have been issued for 11.07.2023.

2. It is argued that the petitioner Akash Sharma is 47 years old and he is suffering from severe medical condition i.e., a neurological disease. Due to his medical condition, he is unable to earn his livelihood. He is unemployed and entirely dependent on his family members. He had applied for loan from the Bank by mortgaging his property purchased vide sale deed dated 17.12.2003. The suit filed by the Bank was decreed ex-parte vide judgment and decree dated 05.10.2011 in which execution application has been filed. The property which was mortgaged with the bank was put on sale by public auction later-on on the basis of third party objections the sale in public auction was cancelled and the money was refunded to the auction purchaser vide order dated 19.01.2019, Annexure P5. The Bank sought permission to file fresh execution and the previous execution application was dismissed as withdrawn as per order dated 24.01.2019. Thereafter, fresh execution application has been filed on 25.02.2019 which is Annexure P-6. In the said execution, notice was issued to the JD and thereafter on 08.04.2019 the learned Executing Court issued show cause notice to the petitioner under Order 21 Rule 37 CPC for 02.07.2019. The case was adjourned from time to time. The conditional warrants were issued as per order dated 11.12.2019 and some dates were also given to explore the possibility of compromise. Thereafter, the file was taken up during the pandemic of Covid-19. The compromise could not take place and ultimately his fresh conditional warrants were issued. The interim orders passed in the execution are Annexure P-7. During this period, the petitioner – Akash Sharma was not aware of the conditional warrants issued against him. It is not the case that he is having money and he is not paying it back deliberately. In-fact, he has no means to pay and for this reason he cannot be sent to civil imprisonment and to support his arguments he has relied upon authority cited in 1982 SCC 360 titled Jolly George Varghese and another Vs. Bank of Cochin. It is pointed out that the respondent / decree holder did not file any application under Order 21 Rule 37 CPC with the request for conditional warrants of arrest and no satisfaction was recorded by the Court that he was delaying the execution of decree or he was not paying the amount deliberately. There is no compliance of mandatory provisions of CPC. It is prayed that the impugned order dated 01.07.2023, Annexure P-8, may kindly be set aside by accepting the present civil revision.

3. On the other hand, learned counsel representing the respondent Bank referred to the order dated 19.01.2019, Annexure P-5, where 3rd party objections filed by Mohinder Kaur were accepted and the money deposited in auction was refunded back to the auction purchaser. There is specific finding of the Executing Court that the JD i.e. the present petitioner was not owner of the property on the basis of which he had raised the loan. Therefore, the petitioner raised loan from the bank in a wrongful manner. The petitioner availed numerous opportunities but he did not satisfy the decree deliberately. The petitioner never raised any objection before the Executing Court that because of his health condition he is unable to earn or he is unable to pay the amount. The efforts to effect compromise also failed. Ultimately, the Executing Court issued show cause notice as to why he be not arrested under the provisions of Order 21 Rule 37 CPC. There is deliberate willful default on the part of the present petitioner. The revision preferred by the