' M: JAVED BUTTAR, J.---This appeal is directed against the order, dated 23-12-2000 passed by Judge, Banking Court-V, Lahore, whereby the appellant's miscellaneous application for his release from the civil prison, was dismissed.
2. The relevant facts are that the respondent-Habib Bank Limited filed a suit for the recovery of Rs,5,98,729 against the appellant/defendant, who chose not to appear and defend the suit and was proceeded ex parte and the Judge, Banking Court-V, Lahore, vide its judgment and decree, dated 3-7-2000, decreed the suit for the recovery of Rs,598.729 in favour of the plaintiff and against the appellant/defendant with mark-up till realization of the decretal amount costs. The execution petition was filed on 5-12-2000 and the same was fixed for preliminary hearing for 8-12-2000 and on the same day, the warrants of arrest of the appellant/judgment-debtor were issued and he was consequently arrested. His application dated 18-12-2000 for his release, as mentioned above, was dismissed on 23-12-2000. Hence, this appeal.
3. We have heard the learned counsel for the parties and have also seen the ,record, copy of which has been attached with this appeal.
4. The perusal of the records shows that initially when the execution petition came up for preliminary hearing on 8-12-2000, a notice under Order XXI, rule 37, C.P.C. Was issued against the appellant/the judgment-debtor for 21-12-2000. However, on the same day, the learned counsel for the decree-holder again appeared before the learned Executing Court, latter in the day and prayed for the recall of the order of issuance of notice of execution and for the issuance of an order of arrest of the judgment-debtor straightaway on the ground that the appellant was a clever person and if he came to know of the institution and pendency of the execution petition, he would run away from the territorial jurisdiction of the Executing Court and, therefore, he should be summoned through warrants of arrest. The Executing Court accepted the oral request and there and then recalled the above said order passed earlier in the day of issuance of show-cause notice to the appellant or, 8-12-2000 for 21-12-2000 and instead straightaway passed an order of summoning the judgment-debtor through warrants of arrest. The appellant was consequently arrested immediately. The appellant moved an application on 18-12-2000 for his release, in which no order of his release was passed and in fact it was ordered on 18-12-2000 that he would remain in civil prison till the payment of the decretal amount and was to be released only on the satisfaction of the decree and ultimately the said application was dismissed on 23-12-2000. The appellant has remained in prison for about five months. He was provisionally released by this Court on 17-5-2001. It has been argued before us that he is not in a position to pay decretal amount at the moment. The schedule of payments for the satisfaction of the decree, given by him, is not acceptable to the respondent-Bank. We have further been informed that under the latest incentive scheme promoted by the respondent-Bank, which is valid up to 30-6-2002, the payment of the outstanding principle amount would absolve the appellant of any other liability. It may further be mentioned here that soon after his release, the appellant was able to deposit an amount of Rs,50,000 towards the satisfaction of the decree.
Having considered all the facts and circumstances of the case, we are of the view that the trial Court acted in haste in ordering the appellant's arrest and detention without adopting the normal procedure of summoning the judgment-debtor through a show-cause notice for the satisfaction of the decree and of the attachment of the movable or immovable property of the judgment- debtor, as the case may be. Furthermore, after the passing of the order of issuance of show-cause notice to the judgment-debtor on 8-12-2000 for 21-12-2000, under Order XXI, rule 37. C.P.C. Which was passed in the presence of the learned counsel for the decree-holder. There was no reason for the Court to recall the above said order on the same day merely on the oral assertion of the learned counsel for the decree-holder that the appellant was clever person and there was danger of his running away from the territorial limits of the Executing Court. The subsequent events of his provisional release by this Court vide order's, dated 17-5-2001 and the deposit of an amount of Rs, 50,000 by the appellant with the respondent-Bank also show that the apprehension of the appellant's absconsion was not well-founded and in any case, instead of straightaway sending him to Jail, the appellant could have been bound down through an acceptable security or surety bond to ensure his presence on each and every date of hearing. We are, therefore, of the view that there was no lawful justification for the learned Executing Court for passing the impugned orders of appellant's arrest and detention on the very day when the execution petition was instituted.
5. In view of the above mentioned, the appeal is accepted and the impugned orders, dated 8-12- 2000 and 18-12-2000 passed by the Executing Court of the appellant's arrest and detention till the satisfaction of the decree are set aside. Consequently, the impugned orders, dated 23-12-2000 are also set aside. There is no need to pass any formal order of the appellant's release as the appellant ,stands released under the orders of this Court passed on 17-5-2001. It is further directed that the execution petition pending before the learned Executing Court shall be decided in accordance with law and the Executing Court is at liberty to pass fresh orders of the appellant's arrest and detention, if deemed necessary. There are no orders as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.