SAVED NAJAM-UL-HASSAN KAZMI, J. -- This judgment will decide C.R. No. 1947/99 and C.R. No. 509/99, as common questions of law and facts arise therein.
2. Facts necessary for the disposal of these two petitions are that respondent No. 1 filed a suit for recovery of Rs. 6,84,000/-, under Order 37 of CPC, on the basis of a promote, which was decreed ex parte on 21.7.1996. An application under Order 37, Rule 4 of CPC, for setting aside of ex parte decree and for leave to appear and defend the suit was filed on behalf of the petitioner which was dismissed for non-prosecution on 20.11.1996. For seeking restoration of the application, which was dismissed for non-prosecution, the petitioner tiled a miscellaneous application, which was dismissed by the learned Additional District Judge vide impugned order dated 9.3.1999. Civil Revision No. 1947/99, arises from order dated 9.3.1999. Initially, petitioner tiled an RFA with a view to challenge decree dated 21.7.1996 alongwith the order dated 9.3.1999 but later case was confined to the extent of order dated 9.3.1999 whereby the application for restoration of the previous application for setting aside of ex parte decree was dismissed for non-prosecution and, therefore, the appeal was treated as civil revision and is being disposed of accordingly.
3. In Civil Revision No. 509/99, the petitioner has challenged the order by which the arrest and detention of the petitioner was directed and miscellaneous application, tiled under the provisions of Punjab Relief of Indebtedness Ordinance of 1960 was dismissed.
4. Learned counsel for the petitioner contended that the application for restoration of the earlier application was dismissed without framing issue or recording evidence, the view taken by the learned, Additional District Judge was harsh, there were sufficient grounds for non-appearance on the relevant date and that the Court acted with material illegality in refusing to extend generous consideration in restoration matters. Learned counsel argued with vehemence that the procedure adopted by the learned Additional District Judge in issuing arrest warrant and sending the petitioner to prison was violative of the settled rule as contained in Order 2, Rules 37/40 and Section 51 of CPC. It was added that no inquiry was conducted, no opportunity of evidence was allowed and that in a mechanical manner, the Additional District Judge proceeded to issue arrest warrant.
5. In reply, learned counsel for the decree-holder argued that the petitioner failed to give any plausible explanation for non-appearance on the material date, the petitioner intentionally avoided the implementation of the decree and also the proceedings in the suit and that despite commitment to deposit a part of the decree in the Court, no deposit was made, hence the orders did not call for any interference.
6. The perusal of the record indicates that a suit for recovery of Rs. 6,84,000/- was filed under Order 37 of CPC, on the basis of a promote. Summons were ordered to he issued for 4.7.1996. On this date, the Court observed that the ordinary summons were returned with the report of refusal.
Accordingly, it was directed that summons he repeated through ordinary process and registered post acknowledgement due and service be obtained through affixation in case of refusal. On 21.7.1996, the learned Additional District Judge proceeded against petitioner ex parte and on the same day, passed a decree by recording the statement of respondent. An application for setting aside of the decree and for leave to appear and defend the suit was filed by the petitioner under Order 37, Rule 4 of CPC, claiming that he came to Lahore at 10 a.m. On 21.7.1996 and went hack to Peshawar at 2 p.m. From where he returned on 28.7.1996 when he came to know of the decree and moved the application for setting aside of the decree. It was claimed that there were sufficient grounds for nonappearance and that the absence was neither intentional nor deliberate, therefore, the matter he heard on merit. This application appears to have been dismissed for non- prosecution on 20.11.1996. Order dated 20.11.1996 reveals that not only the application for setting aside of decree was dismissed for non-prosecution but also the Court directed that the judgment- debtor be detained in civil prison, in execution of decree, till such time, he satisfies the decree in hill.
Accordingly, warrants were issued for the arrest of the petitioner. It appears that in compliance of the order, warrants were issued, petitioner was arrested, produced before the Court on 21.11..1996 when he was sent to prison with the direction that he should he detained till such time the decree was satisfied. At this juncture, petitioner moved an application for restoration of his earlier application under Order 37, Rule 4 of CPC. The learned Additional District Judge vide impugned order dated 9.3.1999 dismissed the two applications, without framing any issue or allowing opportunity of evidence. It was observed that the petitioner was not suffering form any such ailment, which could prevent him from appearance in Court and that there was no explanation for nonappearance of the counsel.
7. From the application filed by the petitioner, it is discernible that the petitioner had claimed that his non-appearance was on account of his ailment, he had a sudden attack of Cholera and was unable to either inform his counsel or to appear in Court. The application was tiled on 24.11.1996 while the order for dismissal of the petition on account of non-prosecution was passed on 28.11.1996. It was thus not a delayed application. Learned Additional District Judge was too much persuaded by the argument that the application was only signed by the counsel. Non-signing of the application was just a procedural irregularity which could not vitiate the proceedings of Court nor invalidate the institution of the application. Such a procedural mistake could be rectified by an order of amendment. The Court could have asked the petitioner to appear in person and sign the application. As a matter of fact, the objection of non-signing the application could not he given importance if the facts on record had been kept in view as there was justification for non-signing of application. Record indicates that after dismissing the application for non-prosecution, the learned Additional District Judge directed that the petitioner he arrested in execution of decree and be detained in prison. On 21.11.1996, the petitioner was produced by the Bailiff of the Court, before the learned Additional District Judge, who declined to release him and directed that he he detained in the prison. In this backdrop, the tiling of application by the counsel with his own signatures, when his client had been detained could not play so heavily-against the petitioner, so as to non-suit him on extreme hyper-technical objection. Even otherwise, the learned Additional District Judge took too much harsh view of the matter by finding faults in the application and dismissing the same on extraneous consideration. It was not. Something unusual if some one had attack of Cholera or was prevented by his ailment to appear in the Court. If the application was resisted and the Court had some reservation, the proper course was to frame issue and allow opportunity of evidence instead of dismissing it summarily. By dismissing the application summarily, the learned Additional District Judge acted in violation of the rule of natural justice. Apart therefrom, it is repeatedly observed that generous consideration should he extended in dealing with the application for restoration of cases and every possible effort should he made to decide the cases on merit, rather than rendering decision ex parte. In view of the circumstances noted supra, the order of the learned Additional District Judge, dismissing the application dated 24.11.1996 seeking restoration of earlier application under Order 37, Rule 4 of CPC suffer from legal infirmities, and jurisdictional error and the same cannot sustain.
8. Coming to the other aspect of the issue, the objection of the petitioner is that he could not he detained in civil prison, unless the preconditions as contemplated in Section 51 of CPC, read with Order 21, Rule 37 of CPC, are satisfied. Order 21, Rule 37 of CPC contemplates that where an application is for execution of decree for payment of money by arrest and detention in prison of the judgment-debtor, who is liable to he arrested in pursuance of an application, the Court shall, instead of issuing a warrant, for his arrest, issue a notice calling upon him to appear in Court and to show cause, why he should not he detained in prison. Notice can he dispensed with only if the Court is satisfied by affidavit or otherwise that with the object of delaying execution of decree, the judgment-debtor was likely to abscond or leave the local limits of jurisdiction of the Court. Sub-rule
(2) of Rule 37 of CPC provides that if appearance .Is not made in obedience of the notice, the Court shall, if the decree-holder so requires, issue a warrant for arrest of the judgment-debtor. Under Rule 40 or 41 of CPC, when the judgment-debtor appears before the Court in obedience of the notice or is brought before the Court, after being arrested in execution of decree, the Court is required to proceed for hearing the decree-holder and to take such evidence as may he produced by it in support of the application for execution, whereafter the judgment-debtor has to he given an opportunity of showing cause why he should not he detained in prison. Pending conclusion of the inquiry, the Court has the discretion to order that the judgment-debtor he detained in custody of an officer of the Court or he released on furnishing of security to the satisfaction of the Court, for his appearance when required. It is only after the conclusion of inquiry that the Court can order for the detention of judgment-debtor in prison, which order will he subject to the satisfaction of pre- conditions of Section 51 of CPC. Section 51 of CPC requires existence of certain pre-conditions to detain the judgment-debtor in prison. Proviso to Section 51 of CPC contemplates that the execution by detention in the prison shall not be ordered, unless after giving the judgment-debtor an opportunity of showing cause why he should not he committed to prison, the Court for reasons to he recorded in writing is satisfied that the judgment-debtor, with the object of obstructing or delaying execution of decree, is likely to abscond or leave the local limits of jurisdiction of the Court or has, after institution of the suit, in which 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 the judgment-debtor has or has had since the date of decree, the means to pay the amount of decree or substantial part thereof and refuses or neglects or has refused or neglected to pay the same or that the decree is for a sum for which the judgment-debtor was bound in fiduciary capacity of account.
9. Careful study of the rules referred to hereinabove, will reveal that in the first instance, notice has to be given to the judgment-debtor to explain as to why he should not he detained in prison. On his appearance, the Court has to make an inquiry, record evidence, give opportunity of evidence in rebuttal to judgment-debtor and thereafter to pass an order on the request for detention in prison in accordance with law. During these proceedings, the judgment-debtor can he asked to furnish security for appearance, which does not mean security for the payment of decretal amount .
Without making an inquiry, the Court cannot straightaway order 'detention in civil prison. Similarly, unless and until the pre-requisites of Section 51 of CPC are proved, detention in the prison cannot he ordered. These pre-conditions, as highlighted hereinabove, are that the judgment-debtor should be proved to have made attempts to leave the limits of the Court, to obstruct the decree or execution thereof or had dishonestly transferred the property after the institution of the suit, to avoid the decree or had the means to pay the decree but neglected to do the ;ame. Without satisfying these pre-conditions, no mechanical order for detention in prison, can be passed by the Court. Reference can he made to Mohsin A.I Vs. National Bank of Pakistan (1987 CLC 1419), where on consideration of the requirements of Section 51 and Order 21, Rules 37 and 40 of CPC; it was observed that the Court is expected to issue show-cause notice to the judgment-debtor, as to why he should not be arrested and when the judgment-debtor appears, the Court is required to hear the decree-holder, take all such evidence as may be produced in support of execution application, allow judgment-debtor an opportunity of showing cause, why he should not be committed to prison and before ordering arrest of the judgment-debtor, the Court must he satisfied by the decree-holder by way of evidence that the grounds as contained in proviso to Section 51 of CPC, do exist for issuance of warrant of arrest. It was further observed that simply because on the date fixed for evidence, the judgment-debtor did not appear would not absolve the decree-holder of his duties to satisfy the Court about the existence of such grounds and Court is also expected to record reasons in writing of such satisfaction,
10. In the present case, when the various orders passed by the learned Additional District Judge are examined, it becomes obvious that he proceeded in a mechanical manner and possibly he was oblivious of the requirements of law as contained in Section 51 of CPC. In the first instance, he issued warrant of arrest and when the judgment-debtor was produced, he straightaway committed him to prison, without' allowing him to furnish security and without recording any evidence of the decree-holder. No order in detail, giving reasons of satisfaction, to commit the judgment-debtor in the prison was passed, nor any inquiry was held in this regard and instead one after the other, orders were passed to detain the judgment-debtor in prison. The orders passed by the learned Additional District Judge for detaining the petitioner in prison, are perfunctory, violative of law and suffer from serious legal infirmities, hence cannot he affirmed. It was mandatory for the learned Additional District Judge to hold inquiry and record evidence in terms of Order 21, Rule 37 of CPC and to satisfy himself, as to the pre-conditions for detaining the judgment-debtor in prison, as contemplated by Section 51 of CPC and to record a reasoned order for justifying the detention. This having not been done, the proceedings held and the order passed on execution petition, for detaining the petitioner in prison, are illegal, without jurisdiction and are accordingly set aside.
11. As to the application tiled under the provisions of Punjab Relief of Indebtedness- Ordinance of 1960, the same was rightly dismissed, as the petitioner cannot possibly claim any benefit in terms of those provisions of law. However, the other grievance voiced by the petitioner has been found to he based on merit.
12. For the reasons above, these revision petitions are allowed, the impugned orders dated 9.3.1999 and order of detaining/committing the petitioner, to prison are set aside and in result application under Order 37, Rule 4 of CPC, filed by the petitioner is restored, which application shall now he decided by the learned Additional District Judge, after .Framing issue, allowing opportunity of evidence to parties and in accordance with law. In the execution proceedings, if the decree-holder applies for arrest and detention of the judgment-debtor, the learned Additional District Judge will proceed in the matter, keeping in view the provisions of Order 21, Rules 37, 40 and Section 51 of CPC and will pass appropriate orders, in accordance with law and on 'merit, in the light of observations hereinabove. However, the execution proceedings. Through attachment and sale of the movable and immovable properties of the judgment-debtor/petitioner, shall not he affected, unless the petitioner furnishes security for the satisfaction of the decree. Both the revisions are allowed in the above terms.