Issuance of arrest warrants for debtors requires compliance with procedural safeguards under Order XXI of the CPC, 1908.

Order

Reportable

23/07/2025

1. The present writ petition has been filed by the petitioner- judgment debtor being aggrieved against the order dated 27.02.2017 (Annexure-7) passed by the Learned Additional District Judge, Tehsil Raisinghnagar, District Sriganganagar, whereby the Executing Court has straight away directed civil imprisonment of the petitioner and for that purpose also directed respondent-decree-holder to file the warrant form as provided under Order XXI, Rule 38 of CPC , 1908.

2. Shorn of unnecessary details, the facts for adjudication of the present writ petition are that respondent-decree-holder filed a suit for recovery of Rs.5,80,000/- along with interest, against the petitioner-judgment debtor. The suit in question was decreed by the learned Additional District Judge, Raisinghnagar (Sriganganagar), by way of judgment and decree dated 09.09.2011. The petitioner had filed a first appeal before this Court against the abovementioned order, however the same was dismissed on 07.01.2014.

3. The respondent filed the execution case, and therein the petitioner filed his objections while submitting that since the appeal was pending at the relevant time, further proceedings in the execution may not be undertaken. The executing Court however by way of order dated 29.05.2015 dismissed the objection of the petitioner and held that the petitioner is having suitable land available to satisfy the decree and therefore execution cannot be stayed. It was further directed that the details of the property be submitted on the next date fixed i.e. 06.07.2015. The matter was pending in the execution proceeding and straight away without issuing notice or without undertaking attachment of the property, the order dated 27.02.2017 came to be passed whereby the warrant of arrest under Order XXI, Rule 38 CPC was directed to be issued. Being aggrieved against the same the present writ petition has been filed.

4. Learned counsel for the petitioner submits that straight away issuing of warrant of arrest without giving any opportunity of hearing to the petitioner is ex facie illegal and against all canons of civil law. He further submits that since the decree was for payment of money, thus the mode of execution is provided under Order XXI, Rule 30 CPC wherein one of the modes of execution is by attachment and sale of the property. He asserts that when the executing Court had itself come to a conclusion that the petitioner is having the property available then there was no occasion available for the executing Court to straight away issue the warrant of arrest. He thus submits that the procedure adopted by the executing Court is ex facie illegal and, therefore, the order impugned is also needs to be quashed and set aside.

5. Per contra the learned counsel for the respondent while supporting impugned order submit that it is a discretion of the executing Court to decide which mode of execution is to be undertaken and the executing Court has rightly adopted one of the modes. He thus submits that the order impugned does not call for any interference.

6. Having perused the record, this Court is of the firm opinion that the procedure adopted by the executing Court is alien to the provisions enumerated in the Civil Procedure Code ( CPC ), 1908. In this regard, few provisions relevant for adjudication of the present case, are quoted as under:-

“ Order XXI, Rule 30: Decree for payment of money. —

Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or b