In execution of an award in the sum of Rs,91,29,349 (passed under, the provisions of Cooperative Societies Act, 1925), the appellant was ordered to be arrested for a period of one year vide order, dated 3-3-1996 commencing the same date.
2. Learned counsel for the appellant contends that the learned executing Court has proceeded in violation of section 51 of C.P.C. Further contends that it is a matter of record that the appellant had already suffered imprisonment for a period exceeding one year in the course of execution of the decree. No one has turned up for the respondents who are represented by a learned counsel whose name stands listed in the cause list for today but has not turned up despite calls. They are proceeded against ex parte.
3. I have gone through the records. I find that in the first instance the appellant was arrested on 12- 12-1993 and released on 12-4-1994. Thereafter, he was arrested on 1-6-1995 and was released by this Court vide order, dated 30-10-1996. I find that the learned counsel is right in saying that the appellant has already suffered imprisonment for a period of more than one year in the course of execution of the decree. Coming to the said- contention of the learned counsel I have examined the impugned order of the learned executing Court. I find that not a single term stated in the proviso to section 51, C.P.C. exists in the present case. I further find that the learned executing Court has gone by absolutely extraneous consideration while ordering the arrest of the appellant. Be that as is may, since the has already suffered imprisonment of more than one year this discussion is more or less academic.
4. For the reasons stated above, this F.A.O. is allowed. The impugned order of the learned executing Court is set aside. The learned executing Court after notice to both the parties shall conduct a fresh inquiry in the matter as contemplated by Order XXI, rule 40, C.P.C. and proceed further in the matter accordingly. In case some other property of the judgment-debtor is available or pointed out by the decree holder, the same shall be proceeded against in accordance with law. No order as to costs.