CR-3825-2023

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118

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

CR-3825-2023

Date of Decision:- 14.11.2023

AKASH SHARMA AND ANR.

...Petitioners

Vs.

STATE BANK OF PATIALA NOW SBI

...Respondents

CORAM:-HON'BLE MS. JUSTICE AMARJOT BHATTI

Present:

Mr. Karan Bhardwaj, Advocate for the petitioners.

Mr. Shashank Bhandari, Advocate for the respondent – Bank.

*****

AMARJOT BHATTI, J. (Oral)

1.

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

SANDEEP

2023.11.17 09:38

I attest to the accuracy and

integrity of this document

CR-3825-2023

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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 P-

5. 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execution application was dismissed as withdrawn as per order dated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

SANDEEP

2023.11.17 09:38

I attest to the accuracy and

integrity of this document

CR-3825-2023

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2023:PHHC:144382

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 3^rd 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 th