' The facts emerging from the present Civil Revision are that the respondent filed a suit against the petitioner for a sum of Rs,1,10,000 on the basis of a cheque No,CA-25-834631 under Order 37, Civil Procedure Code, before the Additional District Judge, Khanewal, inter alia on the ground that the petitioner purchased a 1979 Model Toyota Corrola car bearing Registration No,LHK-3383 from the respondent for a consideration of Rs,1,40,000, out of which an amount of Rs,30,000 was paid and for the balance, the petitioner delivered a cheque in the sum of Rs,1,10,000. The possession of the car was delivered by the respondent to the petitioner. Cheque given to the respondent by the petitioner when presented to the Bank, was returned on the ground that there was no amount in the account. Petitioner appeared in Court and on 12-12-1994 presented an application seeking permission for leave to defend the suit admitting transaction but stating that although a sum of Rs,30,000 was paid by way of part payment, the execution of the cheque was denied. He set up a defence that the registration book of the car was not delivered to him by the respondent; whereupon the petitioner asked the respondent to bring an end to the transaction, return his Rs,30,000 as well as the cheque and he would return the car. The Trial Court vide order, dated 19-4- 1995 granted conditional leave to defend subject to deposit of Rs,50,000 in Government treasury as security. Since the security of Rs,50,000 was not deposited by the petitioner, leave to defend was withdrawn and since the averments made in the plaint were admitted, suit was decreed with costs vide judgment and decree, dated 21-11-1995.
2. The decree-holder/respondent moved an execution application on 10-3-1996 for attachment of the property belonging to the petitioner/judgment-debtor and his arrest and detention in civil prison for the payment of the decretal amount of Rs,1,10,000 + Rs,82,552 being the expenditure incurred, total amounting to Rs,1,18,252. The Executing Court issued notice to the petitioner/judgment-debtor for 24-7-1996 to show-cause that on his failure to pay the decretal amount why warrant of arrest and warrant of attachment be not implemented. The petitioner/judgment-debtor appeared on 24-7-1996 and sought adjournment and finally on 6-10- 1996 submitted reply in which it was prayed that the execution proceedings be stayed, ex parte judgment and decree, dated 21-11-1995 be set aside and he should be allowed to defend the case.
Proceedings were adjourned on various dates due to one reason or the other, finally on 20-6-1997 the petitioner/judgment-debtor absented himself which resulted in ex parte order for further proceedings. Reply, dated 6-10-1996 was dismissed for non-prosecution. It was observed by the Executing Court that since the judgment-debtor failed to appear and show-cause as to why warrants of arrest be not issued against him, fresh non-bailable warrants be issued for the next date of hearing which was fixed as 12-7-1997 with a direction that the same should not be executed by the bailiff if the respondent/judgment debtor deposits payment of the decretal amount with the Court or makes its payment to the bailiff on the spot or produces a stay order issued by the competent Court. Simultaneously warrant of attachment of moveable as well as immovable property of respondent/judgment-debtor was issued for the said date provided the petitioner/decree holder furnished "Ford Taleeqar in the Court.
3. The petitioner impugned the order, dated 20-6-1997 of the Executing Court in Civil Revision No,399-D of 1997 on the ground that the issuance of warrant of arrest of judgment-debtor was subject to conditions laid down under section 51 read with Order 21, Rule XXXVII, Civil Procedure Code and having not been observed and followed by the Executing Court, therefore, the order, dated 20-6-1997 should be set aside.
4. On 21-10-1997 when the said revision petition came up for hearing, the learned counsel for the respondent/decree holder conceded that the order was passed in violation of section 51 of the Civil Procedure Code and had no objection to the acceptance of the revision petition provided the Executing Court is directed to finalize the proceedings within four months. Rile Court on the said date, set aside the order, dated 20-6-1997 and the Executing Court was directed to finalize the Execution proceedings within four months in accordance with law.
5. The Executing Court when seized of the execution proceedings for the second time on 18-2-1998 passed an elaborate order in which it was observed that the judgment-debtor was playing hide and seek with the Court by not appearing but sending requests that he is indisposed and admitted in hospital. On another date excuse was made by the judgment-debtor for non-appearance that a criminal case was registered against him in Which he himself got injured. Excuses led to the conclusion by the Executing Court that the judgment-debtor is avoiding to make payment and as a consequence ordered the arrest of the judgment-debtor. Since the order could not be implemented once again on 21-2-1998 when the case came up for hearing, it was ordered afresh that the judgment-debtor would be arrested if he fails to pay the decretal amount. It was also ordered that the judgment-debtor should show-cause under Order 21, Rule 37, Civil Procedure Code, if the decretal amount is not paid, why he should not be detained in civil prison. The petitioner/judgment-debtor has challenged the orders of the Executing Court, dated 21-2-1998 in the present revision petition.
6. Learned counsel for the petitioner has reiterated his arguments taken in the earlier Civil Revision bearing No,399-D of 1997 contending that since the orders of arrest were passed in violation of section 51 read with Order 21, Rule 37 of Civil Procedure Code, therefore, the proceedings are coram-non-judice and are liable to be set aside.
7. On the other hand, learned counsel for the respondent/decree holder has stated that there is no legal bar for ordering the arrest of the judgment-debtor and simultaneously asking him to show- cause as to why he should not be committed to civil prison in case he fails to pay the decretal amount. He has further stated that even earlier in Civil Revision No,399-D of 1997, Executing Court had given him ample opportunities to show-cause as to why he should not be sent to civil prison and as a matter of fact a detailed reply was submitted but later on absence of the judgment- debtor resulted in the ex parte proceedings and the consequent order passed thereon. It was stated that he made admission before this Court in the earlier civil revision mainly to protect the interest of his client so as to end the matter lingering since 1995 because the opponent, although, admitted his liability, on the one pretext or the other kept on prolonging it.
8. Learned counsel for the petitioner in support of his arguments relied upon Ghulam Hussain v.
Riaz Ahmed (1987 CLC 1227), Mst. Khalida Khanam v. State (1989 MLD 1553), Mohsin Ali v. National Bank of Pakistan (1987 CLC 1419) and Raja Munsif Dad v. WAPDA through Chief Engineer, Mangla Dam Project, Mangla (PLD 1991 Azad J&K 8).
9. To properly understand the respective contentions, it is desirable to set out the relevant provisions of law. Order 21, Rule 37 of Civil Procedure Code reads as under:--- ' Order 21, Rule 37: Discretionary power to permit judgment-debtor to shvu 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 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 21, Rule 40, C.P.C., is as follows:--- "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 out 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 On Court does not make an order of detention under sub-Rule (3), it shall disallow the application and, if the Adgment-debtor is under arrest direct his release."
10. In the instant case on 21-2-1998, notice under Order 21, Rule 37, C.P.C., was also issued. In fact what was done to was that notice under Order 21, Rule 37, Civil Procedure Code and also warrant of arrest was issued simultaneously. In a Division Bench ruling of Kerala High Court reported in Thangal v. State of Kerala (AIR 1961 Kerala 331) it was held that the procedure in ordering notice and arrest to issue simultaneously even though not Quite proper, on that ground the warrant of arrest which is there wise valid cannot be considered to be effective or illegal.
11. Sub-rules (1) and.(2) of Rule 40 of Civil Procedure Code provide for the arrest and the custody of The judgment-debtor, whereas sub-rule (3) of Rule 40 of Civil procedure Code deals with the detention of the judgment-debtor in civil prison. It is only when an order sub-Rule (3) of Rule 40 of Civil Procedure Code is made, it will have to be made subject to the provisions of section 51 of Civil Procedure Code. In order to properly understand the impact of section 51 of Civil Procedure Code, its provisions are reproduced:--- "51. Powers of Court Den force 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)_
(b) by arrest and detention in prison; (c)
(d)
' Provided that where the decree is for payment of money 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 ' The Court will have to be satisfied that one or the other of the conditions set out under that proviso is applicable to the facts of the case before ordering the detention of the judgment-debtor. There can be no doubt that the inhibition contained in section 51 is not made applicable while ordering arrest of the judgment-debtor.'
12. It would be worthwhile to refer to decision of a case reported in Lervia Abbayee of Pithapuram v.
Suryanarayana (AIR 1948 Mad. 9(1) The Judge, who passed the order after a careful examination of the relevant law, came to the conclusion that mandatory proviso to section 51, C.P.C., will have to be specified only while committing the judgment-debtor to the prison and not at any earlier stage.
This decision was latter followed in Puttaramiar v. Hajee Ibrahim Essack & Sons (AIR 1959 Mys 94 (V,46), where it was held that the proviso (1) section 51, C.P.C., referred only to execution by detention in prison and not to execution by arrest and detention in prison and that need for the Court to be specified that the conditions mentioned therein exist and the recording of reason applies only to an order in prison and not to arrest. In another decision of Bombay High Court in Madhusudan Prabhakar Chitale v. Trimbak Vyankatesh Joshi (AIR 1961 Bom.23) wherein it was observed as under:- "Where a Court issued warrant either under sub-Rule (1) or under sub-Rule (2) it does not do so with the intention of committing the person against whom a warrant s issued to prison. It only issue' such a warrant to secure the presence of such a person in Court. For these reasons the provisions of section 31 or Order 21, Rule 40 are not applicable.. The provisions of the latter rule would apply at a later stage, that is, after the judgment-debtor appears in Court, in pursuance either of a notice or a warrant."
13. As a general rule the Executing Court should postpone enquiring about the requirement of section 51 till the stage of detention is arrived at. It may be conveniently proper that any inquiry as to the liability of the judgment-debtor to be committed to civil prison should be made before the arrest is ordered but such a determination is not a condition precedent for the order of arrest itself.
14. The conduct of the judgment-debtor in the present case has been wilful and contumacious. He has availed of every chance to deliberately delay the proceedings, always on a flummery pretext.
Once having admitted in his application for leave to defend his liability to pay the price of the car to the decree-holder mere technicalities of law should not be allowed to come to his rescue every time, which is more likely 'to encourage indiscipline which allows the delinquent judgment-debtor to pollute the pure and undiluted flow of administration of justice.
15. Resultantly, this civil revision, therefore, does not call for any interference and is accordingly dismissed.
' The Executing Court is directed for finalize the proceedings within a period of two months positively. Parties are directed to appear before the Executing Court on 5-10-1998.