SHAMS MEHMOOD MIRZA, J. This writ petition calls into question order dated 03.12.2022 passed by the executing court and order dated 07.12.2022 passed by the Additional District Judge.
2. Facts of the case in brief are that respondent No.1 filed a suit against the petitioner under the provisions of Order XXXVII of the Code of Civil Procedure, 1908 (C.P.C.) in which a judgment and decree was passed on 14.01.2021. In the execution proceedings, non-bailable warrants of arrest of the petitioner were issued and he was arrested by the bailiff of the court and sent to civil prison through order dated 03.12.2022. It is the case of the petitioner that his thumb impression and signatures were obtained on blank order sheet on 03.12.2022 and that the order was passed subsequently for sending him to civil prison without affording him any opportunity of hearing to him enabling him to engage a-counsel. The petitioner filed a revision against order dated 03.12.2022 which was also dismissed on 07.12.2022.
3. Record duly substantiates the narration of events by the petitioner. The order sheet of the executing court reflects that on 15.10.2022 the execution petition of respondent No.1 was consigned to the record on the ground that the has lost interest in prosecuting same. This impression was perhaps gathered by the executing court as respondent No.1 did not appear before it on 15.10.2022 despite the case being repeatedly called since morning. Be that as it may, the executing court on the application of respondent No.1 recalled its order passed on 15.10.2022 and restored the execution petition on 16.11.2022. On the same date non-bailable warrants of arrest were also issued for 30.11.2022. The certified copy of order sheet available at page 29 of this petition clearly shows that it was blank with thumb impressions and signatures of the petitioner on the margin thereof.
Page 30 of the present file shows that order was subsequently passed on 03.12.2022. The petitioner has supplied certified copy of both the blank order sheet and order dated 03.12.2022 that appears to have subsequently been passed.
4. On being confronted by the clear anomaly in the two order sheets of the same date, learned counsel for respondent No.1 submits that his client is not responsible for the action of the executing court.
5. A learned Division Bench of this Court in its judgment rendered in W.P. No.74940 of 2019 titled Muhammad Arif v. Standard Chartered Bank of (Pakistan) Limited has formulated the principles for the process to be adheared by the executing courts under section 51 of the Code of Civil Procedure, 1908 (C.P.C.) read with Order XXI, Rule 37, C.P.C. The relevant portion of the Said judgment reads as under.
5. Examination of the provisions of Order XXI, Rules 37 and 40, C.P.C. is also instructive in this regard that reveals that where an application for the arrest and detention is made, the court, instead of issuing warrant for arrest, may issue a notice calling upon the judgment debtor to appear on a date specified in the notice and show cause as to why he should not be detained in prison and where the judgment-debtor appears in the court in pursuance of the notice or is brought before the court after being arrested the court shall hear the decree-holder, take all such evidence as may be produced by him in support of his application and shall then give judgment-debtor an opportunity of showing cause why he should not be detained in prison and that pending conclusion of inquiry the court, in its discretion, order to release the judgment-debtor on furnishing of Security to A the satisfaction of the court for his appearance, when required, and that on conclusion of inquiry, the court can subject to the satisfaction of provisions of section 51, C.P.C., make an order in respect of detaining the judgment-debtor in prison.
6. These rules and procedure therein have been considered in number of cases and the consistent view taken is that before passing an order for arrest and detention of judgment-debtor, the court shall after due inquiry and affording opportunity of evidence to parties determine that the pre- conditions for the issuance of such directive have been satisfied by the decree-holder. In the case of "Messrs 3-A Trade Impex through Partner and 2 others v. Askari Commercial Bank Ltd., through Branch Manager (2005 CLD 1379) it was observed to the effect that merely on the basis of an affidavit of the decree-holder, the order of arrest and detention could not be passed unless the affidavit was properly tendered in evidence, subjected to cross-examination, the facts stated therein are duly scrutinized, opportunity of evidence to the opposite party is allowed and that thereafter the existence or otherwise of the pre-conditions for passing order of arrest could be determined and that unless those mandatory ingredients were established on record by admissible evidence through inquiry, curtailment of liberty by arrest and detention could not be made. Reference can also be made to the case of "Abdul Basit Zahid v. Modaraba Al-Tijarah through Chief Executive and 2 others" (PLD 2000 Kar. 322), wherein a Division Bench of Sindh High Court while considering the provisions of section 51 read with Order XXI, Rules 37 and 40, C.P.C. as also section 18 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 observed to the effect that section 51 of C.P.C. provides for the execution of decree through arrest and detention of judgment-debtor while proviso thereof furnishes certain safeguards against the deprivation of liberty and that such power can only be exercised under certain given situations and that while considering the provision of section 18 of the Act ibid, the proposition was unsubscribable that the words in such other manner as it deems fit could be so broadly interpreted as to confer unbridled powers upon the Banking Courts to commit judgment-debtor to prison without fulfilling the conditions set down in C.P.C. and that these words only mean that apart from the modes (prescribed in C.P.C. and other laws, the Banking Court may adopt any other method for execution provided that the same is not repugnant to or in conflict with any existing law. The consistent view taken by this Court in number of cases is also that before passing an order for the issuance of warrants for arrest and detention or passing an order for detention/arrest, the court needs to issue a show cause notice, satisfy itself through an inquiry and by allowing opportunity of evidence and that unless the preconditions are proved the order for arrest and detention of judgment-debtor cannot be passed. Reference can be made to "Muhammad Mubeen v. A.B.N.
Amro Bank Ltd. through Manager" (2015 CLD 1904), "Dr. Rauf Ahmed Azhar v. Banking Court No.11, Lahore and 6 others" (2007 CLD 964), "Aftab Saleem Choudhary and another v. Soneri Bank Limited through Attorneys" (2005 CLD 401) and "Precision Engineering Ltd. and others v.
The Grays Leasing Limited (PLD 2000 Lah. 290).
5. Clearly, the executing court fell in error in passing order dated 03.12.2022 for sending the petitioner to civil prison without following the due process of law as mentioned in the above judgment. Similarly, the Additional District Judge seized of the revision tiled by the petitioner dismissed the same on 07.12.2022 without attending to the facts of the case or the law applicable thereto.
6. In the circumstances, this writ petition is allowed and orders dated 03.12.2022 and 07.12.2022 are set aside. Muhammad Kaleem, petitioner is ordered to be released from the civil prison forthwith.