A warrant of arrest in execution proceedings is a last resort; the judgment-debtor must be given an opportunity to appear and contest the decree before detention is ordered.

JUDGMENT

Mrs. Ritu Tagore, J.

CM-7240-CII-2024

This application is for placing on record zimini orders of trial Court as Annexures P-6 to P-9.

Application is allowed as prayed for.

Annexures P-6 to P-9 are taken on record, subject to just exceptions.

CR-810-2024

This revision is directed against the order dated 18.10.2023 (Annexure P-5) passed by learned Civil Judge (Junior Division) Jagadhri in Execution Petition No.118 of 2022 titled 'M/s Ghanshyam Dass Sandeep Kumar v. Parminder Singh' whereby conditional/arrest warrant of petitioner has been issued invoking the powers under Order 21, Rule 37, the Code of Civil Procedure, 1908 (for short as ' the CPC').

2. The learned counsel for the petitioner submits that petitioner undertakes to appear and join the proceedings before the learned Executing Court and present his version as permissible under the law. It is stated that an ex parte judgment and decree dated 29.10.2021 (Annexure P-1) was passed against the petitioner for a recovery of Rs. 10,39,443/- alongwith interest @ 6% per annum, pendent-lite and future, in a civil suit bearing No.217 of 2018 titled as M/s Ghanshyam Dass Sandeep Kumar v. Parminder Singh, instituted by proprietor/manager Sh. Pradeep Kumar of M/s Ghanshyam Dass Sandeep Kumar against him. However, the petitioner was never served in the said suit and had no intention of avoiding submission to the jurisdiction of the Court. The learned counsel submits that the petitioner intends to take appropriate steps, as permissible under the law, to assail the judgment and decree (Annexure P-1), which has not yet been contested. Learned counsel submits that fresh conditional warrant of arrest has been issued against the petitioner, to be executed through SHO, Chhappar, returnable for 31.07.2024, in the execution proceedings filed by the respondent for execution of judgment and decree (Annexure P-1). It is urged that the petitioner undertakes to put an appearance before the learned Executing Court on/ before the date fixed i.e. 31.07.2024 and prays that till then his liberty be protected. In support his contention relies upon a judgment of co-ordinate Bench of this Court in Major Singh and another v. M/s Murli Trading Company, 2023 (2) Law Herald (P&H) 1353.

3. I have heard learned counsel for the petitioner and have gone through the case file and other documents placed on record with his valuable assistance.

4. Keeping in view the limited prayer made in the present petition, I am of the considered view that issuing notice to respondent at this stage would only further delay the proceedings before the learned Executing Court and further keeping in view of the order that is being passed.

5. It is a matter of record that respondent filed a civil suit mentioned above, that was decreed ex parte. As per the observation made by the learned trial Court in para No.3 of the judgment (Annexure P-1), the petitioner (defendant before the learned trial Court) was served with the notice but he did not put up appearance and was proceeded ex parte. The petitioner has assailed the aforesaid fact by stating that he was never served and intends to challenge the judgment and decree passed against him ex parte.

6. Further, it is suffice to say that the respondent filed an execution petition for execution of the judgment and decree (Annexure P-1). The notice of the same was issued to the petitioner (JD). The zimini order dated 01.07.2022 (Annexure P-4) indicates that the notice was received back with the report of refusal through his wife. Accordingly, the petitioner was proceeded ex parte and a warrant of attachment of his property was ordered to be issued. Zimini order dated 19.04.2023 (Annexure P-8) further reveals that the warrant of attachment of property of the petitioner (JD) was not issued for want of filing of list of the property of the petitioner(JD). Instead, an application for issuance of conditional warrant of arrest of the petitioner was filed, and accordingly, a conditional warrant