HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

…

CR no.07/2020

CM no.1049/2020

Reserved on: 27.02.2020

Pronounced on: 04.03.2020

Tariq Ahmad Rather

……. Petitioner(s)

Through: Mr Altaf Haqani, Advocate

with Mr Shakir Haqani, Advocate

Versus

M/s Gopi Chand Prem Kumar

………Respondent(s)

Through: Mr N.H.Shah, Advocate

CORAM:

HON’BLE MR JUSTICE TASHI RABSTAN, JUDGE

JUDGEMENT

1. Setting-aside of Order dated 20^th February 2020, passed by the court of

Sub Judge (CJM) Sopore (for brevity <Trial Court=) in an Execution

Petition titled Firm Gopi Chand, Prem Kumar v. Tariq Ahmad Rather,

directing detaining of petitioner in civil prison for a period of one month

in execution of the decree, is implored for on the grounds mentioned in

Revision Petition on hand.

3.1. It is averred in the Revision Petition on hand that in a Suit for Rendition

of Accounts, a decree for payment of Rs.1,55,84,233.30 was passed on

17^th July 2019 by Trial Court in favour defendant 3 respondent herein.

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CM no.1049/2020

3.2. It is maintained that application for execution of decree having been

filed by respondent before Trial Court did not satisfy requirements of

Section 51 of the Code of Civil Procedure (CP).

3.3. Learned Trial Court is stated to have not appreciated any satisfaction

that application for execution was incompetent and that no inquiry as

required under Rule 40 of Order 21 CPC was held by Trial Court.

3.4. It is asserted that Trial Court did not issue any show cause notice to

petitioner enabling him to explicate as to why he should not be

committed to civil prison. Petitioner was got arrested by Trial Court on

14^th February 2020 consequence to issuance of warrant of arrest which

was issued merely because on 3^rd February 2020, both petitioner and

his counsel were absent in the proceedings though he had already

caused his appearance before Trial Court on previous dates of hearing,

i.e. 26^th December 2019 and 30^th December 2019. Trial Court, taking

up the matter on 15^th February 2020 and 18^th February 2020, while

petitioner was under arrest, did not hold any inquiry or receive any

evidence in support of application for execution and also did not give

petitioner an opportunity to show cause against detention in civil

prison.

3.5. It is avowed that petitioner has not failed to satisfy the stipulation of the

decree in that the decree provided payment of decretal amount in four

years from the date of compromise deed, which according to respondent

was entered into on 22^nd January 2018.

4. I have heard learned counsel for parties and considered the matter.

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5. According to learned counsel for petitioner impugned order passed in

Execution Petition is in contradiction to provisions of Section 51 read

with Rule 11-A and 37 CPC, besides provisions of Rule 40 of Order

XXI CPC.

6. Per contra, Mr N. H. Shah, learned counsel for respondent, has insisted

that revision petition is not maintainable against order impugned and is

liable to be dismissed. He has produced copies of certain order passed

by Trial Court, which are taken on record.

6.1. A submission, made by learned counsel for respondent during course

of advancement of arguments that judgement cited by Trial Court

rendered in the case of M/s Pushpa Sahakari Avas Samiti Ltd v. M/s

Gangotri Sahakari Avas S. Ltd and others, AIR 2012 SC 1788, while

passing impugned order, has significance and bearing on instant matter

inasmuch as it has been observed therein that execution petition can be

filed before expiry of time stipulated in compromise decree for

judgement debtor to honour his obligation, though initially looks

convincing yet it pales into significance owing to the discussion and

reasons ingeminated hereafter, more particularly when in Pushpa

Sahakari Avas Samit Ltd. (supra), the order in execution petition was

passed, the decree had beco