ABDUS SATTAR ASGHAR, J.--Through this F.A.O. Talib Hussain judgment debtor has assailed the order dated 13-4-2012 passed by learned Executant Court to send him to 'civil prison for one year due to non-payment of decretal amount
2. It is argued by learned counsel for the petitioner that the impugned order is against law and facts, violative to the provisions of Sections 51 and Order XXI. Rule 37 of the Code of Civil Procedure, 1908 causing miscarriage of justice and liable to set aside.
3. It is resisted by learned counsel for the respondent/decree holder with the contentions that appellant/judgment debtor having knowledge of the decree after appearing before the learned Executing Court later on willfully disappeared to avoid the payment of decreetal amount; that his attendance was procured by the learned Executing Court through issuance of non-bailable warrants, therefore, impugned order is lawfully passed to execute the money decree.
4. Arguments heard. Record perused.
5. At the outset it may be expedient to reproduce hereunder relevant provisions of section 51, Order XXI, Rules 37 and 40 of the Code of Civil Procedure, 1908 for ready reference:- "Section 51. Powers'of Court to enforce execution. -Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-bolder, order execution of the decree--
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by sale without attachment of any property;
(c) by arrest and detention in prison;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require: ' [Provided that, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-
(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree, --
(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or
(ii) has, after the institution of the suit in which the decree was passed dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or
(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or
(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.
Order XXI, Rule 37. Discretionary power to permit judgment-debtor to show cause against detention in prison.--(1) Notwithstanding anything in these rules, where an application for the execution of a decree for the payment of money .By the arrest and detention in 1-] prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court [shall], instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be detained in prison: [Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.
(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.
Order XXI Rule 40. Proceedings on appearance of judgment-debtor in obedience to notice or after arrest.-(1) When a judgment debtor appears before the Court in obedience to a notice issued under rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, 'the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the judgment-debtor an opportunity of showing cause why he should not be [detained in] prison.
(2) Pending the conclusion of the inquiry under sub-rule (1) the Court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required.
(3) Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of section 51 and to the other provisions of this Code, make an order for the detention of the judgment-debtor in [-] prison and shall in that event cause him to be arrested if he is not already under arrest: ' Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied.
(4) A judgment-debtor released under this rule may be re-arrested.
(5) When the Court does not make an order of detention under sub-rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release."
6. There is no cavil to the proposition that a judgment-debtor can be arrested and sent to the civil prison in execution of money decree as contemplated in the afore quoted provisions of procedural law. Bare reading of the above referred provisions of the Code of Civil Procedure, 1908 reveal that before issuing a warrant of arrest a notice to show cause has to be given to the judgment debtor to explain as to why he should not be detained in the prison. Such a notice can be dispensed with only if the Court is satisfied by affidavit or otherwise that the judgment debtor was likely to abscond or leave the local limits of the jurisdiction of the Court to -avoid the payment of decreetal amount. Afore referred provisions also manifest that if appearance is not made in obedience of the notice the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment debtor. It also contemplates that when the judgment debtor appears before the Court in obedience of the notice or is brought before the Court after being arrested it is incumbent upon the Court to furnish an opportunity of hearing to the decree holder and also to give an opportunity to the judgment debtor to show cause why he should not be detained in prison. Pending such inquiry it is discretionary with the Court to order the detention of the judgment debtor or his release subject to furnishing of surety to the satisfaction of the Court for his appearance as and when required. It is therefore obvious that the detention of a judgment debtor in prison can be ordered only after the conclusion of the inquiry by the learned Executing Court subject to the satisfaction of the pre-requisites of Section 51 of the Code of Civil Procedure, 1908.
7. In the light of the above legal position careful appraisal of the record reveals that neither a notice was served upon the judgment debtor nor any inquiry was conducted by the learned Executing Court before passing the impugned order of detention of judgment debtor in the civil prison for a term of one year. The impugned order therefore being a flagrant violation of the provisions of section 51 read with Order XXI, Rules 37 and 40 of the Code of Civil Procedure, 1908 is untenable in the eye of law.
8. For the above reasons, this appeal is allowed and impugned order dated 13-4-2012 passed by learned Executing Court is set aside. The appellant is allowed to join the execution proceedings on furnishing surety bond equal to the decreetal amount to the satisfaction of learned Executing Court within a period of thirty days for his appearance in the execution proceedings. The learned Executing. Court is directed to proceed with the execution proceedings on its merits in accordance with law.