S M ATTIQUE SHAH, J. Through instant petition under Section 115 C.P.C., the petitioners have challenged the impugned orders dated 21.06.2021 and; 17.07.2021, rendered by learned Additional District Judge-V, Mardan; whereby petitioner was sent to Civil Prison and warrant of arrest was issued against the sureties and; subsequently review petition of petitioner was dismissed respectively.
2. Heard.
3. Record reflects that earlier the suit of respondent was decreed against the petitioner vide order dated 14.09.2020. Subsequently, in execution proceedings, the petitioner failed to deposit the monthly installment as per terms of the decree; therefore, he was sent to Civil Prison, which order was challenged by the petitioner before this Court through instant petition.
4. Learned counsel for petitioner vehemently contended that the impugned order of learned Executing Court is illegal; being passed in flagrant violation of the provision of Order XXI Rule 37 read with Section 51 C.P.C. and; prayed for setting aside the same.
5. Conversely learned counsel representing the respondent controverted the contention of petitioner and; argued that the matter in question was settled between the parties through compromise, however, the petitioner failed to deposit the monthly installment qua the decree so passed in favour of the respondent; therefore, the impugned order qua detention of the petitioner in Civil Prison is the result of proper appreciation of the facts and; circumstances of the case, Which requires no interference in the present petition.
6. Heard.
7. As the matter revolves around the provision of Section 51 r/w Order XXI Rule 37 C.P.C; therefore, the same is reproduced below for ready reference:-
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 delivering of any property specially decreed; b. By attachment and sale or by sale without attachment of any property; c. By arrest and detention in person; 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 decrees:
(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 had 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 is for the execution of a decree for the payment of money by the arrest and detention in 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 delaing 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.
The ibid provision has mandated the learned Executing Court to enforce the execution of decrees.
Besides, other modes, the detention of the J.D in Civil Prison has also been provided by the ibid provision of the law. When the J.D, refuses or neglects to pay the decretal amount; then, he can be sent to the Prison, however, before committing him to the Prison, the learned Executing. Court has to provide him an opportunity of showing cause qua his committing to Prison. and, upon his satisfaction that the J.D, has the means to pay the amount of decree or some substantial part thereof and; refuses or neglects or has refused or neglected to pay the same, then, he could be sent to Civil Prison and; indeed, in such a case, the learned executing Court is under legal obligation to provide justiciable reasons thereof. Both the ibid provisions are to be applied in conjunction with one another. When the J.D is to be committed to Civil Prison qua enforcement of a money decree either, he has to be issued a show cause notice, as to why he should not be sent to Civil Prison or the same has to be dispensed with, being so contemplated by the ibid provision, if the Court is satisfied by an affidavit or otherwise, that, with the object/purpose of delaying the execution of the decree or to frustrate the same, the J.D is likely to abscond or leave the local limits of the jurisdiction of the Court.
8. This Court has minutely scanned the available record; however, could not find any material which could show the due compliance of the ibid provision of law. Therefore, I have no hesitation in holding that the learned executing Court has indeed committed serious illegality, while not providing the J.D a proper opportunity of showing cause qua his committing to prison due to non- payment of the decretal amount. As of now, it.is well settled that when the law requires a thing to done in a particular manner, then, the same ought to be done in that very manner or it should not be done at all.
9. In view thereof, instant petition is allowed and the impugned order of learned Executing Court is set aside.