MUHAMMAD FARRUKH IRFAN KHAN, J.---Through the instant appeal the appellant has assailed the order dated 15.7.2013 whereby his application seeking suspension of his warrants of arrest through order dated 7.3.2013, has been dismissed by the learned Executing Court/Banking Court No.1, Faisalabad.
2. Learned counsel for the appellant submits that the impugned order is contrary to the law and facts on record; that the learned Judge Banking Court while passing the impugned order has not taken into consideration that as per settlement between the decree holder-Bank and the appellant/judgment debtor only an amount of Rs.100,000/- was outstanding which could be even recovered by auction of the two trucks belonging to the judgment debtor/appellant which are retained by the decree-holder Bank; that besides the said two trucks the appellant had also furnished surety bond of land measuring 13 kanals 5 marlas 7 sq.ft on 26.3. 2013, therefore, issuance of his warrants of arrest was not justified; that the Executing Court in the first instance should have resorted to the auction of the mortgaged property/trucks of the appellant/judgment debtor; and that the Executing Court has failed to exercise jurisdiction in accordance with law , therefore, the impugned order is liable to be set aside.
3. Conversely , learned counsel for the respondent-Bank submitted that the application for cancellation of warrants of arrest was filed just to prolong the execution proceedings; that as per settlement between the parties the judgment debtor/appellant was bound to pay the outstanding amount of Rs.100,000/- to the decree-holder/Bank; and that the impugned order has been passed in accordance with law and does not suf fer from any legal infirmity .
4. Arguments heard. Record perused.
5. In the reply to the application of the appellant filed before the learned Judge Banking Court/Executing Court for cancellation of warrants of arrest it has not specifically been denied that out of eight vehicles two are still lying in possession of the decree-holder/Bank as being the hypothecated property . In his application the appellant/ judgment debtor has himself offered the decree-holder/Bank to sell his hypothecated two vehicles for satisfaction of the remaining part of the decree. The record shows that the appellant has not been given proper opportunity to defend or plead his case before the Executing Court in response to notice under Order XXI, rule 37 of the C.P.C. issued on 7.3.2013. The Executing Court instead of initiating proceedings for auction of the hypothecated property of the judgment debtor by way of auction/sale resorted to directly issue of warrants of arrest of the judgment debtor/appellant, which was not justified as the tendency of adopting such like coercive measures has been deprecated by the superior courts of this country . Passing such an order against the judgment debtor without first proceeding for disposal of his movable or immovable property is against the mandate of law and procedure on the subject. In forming this view reliance is placed on the case of Mirza Shahid Baig v. National Bank of Pakistan and 8 others (2002 CLD 623 ) wherein a Division Bench of this Court has observed and held as under: "2. We have heard both the learned counsel and, in particular , the learned counse l of the judgment-debtor Bank. It is evident that the decree obtained by the respondent-Bank is to be satisfied through sale of the properties mentioned in the Farad Taleeqa. The Banking Court should, in the first instance, attempt to sell the said properties and only in the event the sale proceeds are not sufficient to satisfy the decree, or the judgment-debtor impedes the sale or commits other prejudicial acts that it would be proper to proceed against the judgment-debtors personally ..
In this view of the matter , we would modify the impugned order and hold that there was no justification on 31.10.2001, for issuing warrants of arrest against the appellant Mirza Shahid Baig."
In the instant case the Executing Court has not dealt with the application of the appellant with procedural fairness which is right of every citizen without creating distinction between decree-holder or the judgment debtor . The impugned order clearly offends the mode s of execution of a decree as prescribed in section 51 of the C.P.C. In order to better appreciate the issue in hand I feel it expedient to reproduce section 51 of the C.P .C. as under: "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-holder , 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 ef fect 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, dishon estly 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."
A thoughtful study of the above said provisions of law keeping in view the facts and circumstances of the instant case leads to hold that in this case there existed none of reasons explained in the above said provisions of law for detention of the judgment-debtor in prison. The learned Executing Court was not justified in refusing application for cancellation of warrants of arrest of the appellant/judgment debtor . Needless to state that the legislative intent is to ensure that a decree of the court is satisfied in full, in the shortest possible time. The intent, behavior , attitude, conduct etc. of the judgment debtor is very much essential to determine how the Executing Court should deal with the judgment debtor . Where the Court finds that the judgment debtor has, or has had since the date of decree, the means to pay the amount of the decree or some substantial part thereof and refus es or neglects or has refused or neglected to pay the same only then it can commit the judgment debtor to prison. Notwithstanding the above vast powers given to the Executing Court it is also the legislative intention to protect the citizens from personal humiliation in the capacity of a judgment debtor , therefore, the law provides the mode of execution of the decree by way of attachment and auction of his/her movable and immovable property at the first instance to satisfy the decree and in the absence of satisfaction of the decretal amount only in terms of the provisions envisaged in section 51 of the C.P.C. supra, the court can resort to committing a judgment debtor to prison. As the Executing Court in this case has passed the impugned order against the legislative intent and mandate of the law supra, therefore, the same is not sustainable in the eye of law .
6. In view of above, the instant appeal is allowed and the impugned order dated 15.7.2013 is set aside.