UMAR ATA BANDIAL, J.---This petition is filed to challenge the order dated 22-11-2006 passed by the learned Banking Court ordering the issuance of warrants of arrest of the petitioner/judgment- debtor at the very outset in execution proceedings of an ex parte decree passed by the said learned Court on 20-9-2006 for an amount to Rs.417,411. The said order for issuance of warrants of arrest dispense the prescribed notice and is passed without conducting the inquiry contemplated under section 51 and Order XXI, rule 40 C.P.C.
2. The ground given in the impugned order for directing an extreme mode of execution so early in the execution process is that the banker's affidavit on record states the judgment-debtor is likely to leave the country at any time. Therefore, under the proviso to Order XXI, rule 37, C.P.C. "issuance of notice can be dispensed with straightaway and warrants of arrest can be issued for recovery of decretal amount".. Consequently, the petitioner was arrest on 24-11-2006 and for his inability to pay the decretal amount he was kept in detention until ordered on 29-11-2006 by this Court to be released against security.
3. A perusal of the affidavit supporting the respondent-Bank's application for arrest and detention reveals a bald allegation made without reference to any material, evidence or facts to the effect that the petitioner is going to leave the jurisdiction. It is clear that such a statement on oath was given mechanically merely to procure a coercive order against the petitioner at the very outset.
The learned Banking Court also chose to disregard the legal pre-requisites for adopting the extreme measure of ordering arrest of the petitioner. In doing so, the impugned order ignored the settled law of the country as articulated in Precision Engineering Ltd. v. The Grays Leasing Limited (PLD 2000 Lahore 290) (D.B.). This has been followed by a string of judgments including Aftab Saleem Chaudhry and another v. Soneri Bank. Limited (2003 CLD 401) and Bashir Ahmed v.
Judge Banking Court No.1 (2005 CLD 1728) that hold an order for issuance of warrants of arrest would be illegal unless preceded by an enquiry expressing satisfaction of a learned executing Court that conditions for arrest as specified in section 51, C.P.C. Are duly met. A brief look at the statement of law made in this regard in the Precision Engineering case shall elucidate the point under consideration: "Deeper analysis of the rules referred to hereinabove, makes it obvious that in the first instance, notice has to be given to the judgment-debtor to explain as to why he should not be detained in prison. On his appearance the Court has to make an inquiry, record evidence, give opportunity of evidence in rebuttal and thereafter to 'pass an order on the request for detention in prison, in accordance with law. During these proceedings the judgment-debtor can be asked, to furnish security for appearance, which does not mean security for the payment of decretal amount.
Without making any inquiry the Court cannot straightaway order detention in civil prison. Likewise, unless the prerequisites of section 51. Of C.P.C. Are proved to exist, detention in prison cannot be ordered. The preconditions, as highlighted hereinabove, are that judgment-debtor should be proved to have made attempt to leave the limits of Court, to obstruct the decree or execution thereof or to have dishonestly transferred the property after the institution of the suit to avoid the decree or had the means to pay the decree and neglected to do the same. Without satisfaction of these preconditions, no mechanical order for detention in prison can be passed."
4. In view of the foregoing considered judicial view, learned counsel for the respondent-Bank has tried to justify the impugned action on the basis of a creditor's right to chose the appropriate mode for execution of a money decree. He has relied on Abdul Qayyum Arif v. Agha Gul (2002 YLR 2541) and Qamar Zaman v. Judge Family Court (2003 YLR 2415) to fortify his case. The said principle discussed in the aforenoted judgments does not, however, qualify or distinguish the rule that an order issuing warrants of arrest of a judgment-debtor must be, preceded by an enquiry that is highlighted in the foregoing discussion in the Precision Engineer case.
5. Indeed the failure by the learned Banking Court in the present case to have conducted the requisite enquiry and to have omitted to apply its judicial mind to the criteria and the factual material for ordering arrest of a judgment-debtor constitutes a fatal error that vitiates the impugned order. The impugned order is, therefore, declared to be illegal, without lawful authority and of no legal effect. As a result the petitioner shall face the execution proceedings before the learned Banking Court which shall proceed strictly in accordance with law in the matter of realization of the decretal amount from the' judgment-debtors. .
M.B.A./K-14/L .