Law: Civil Procedure Code (V of 1908)

Section: 51,O.XXI,Rr.37,40

Civil Procedure Code (V of 1908) ----S. 51 & O. XXI, Rr. 37 & 40---Execution of decree---Power of court to enforce execution---Warrant of arrest of -debtor---Scope---Judgment-debtor impugned the order of Executing Court for his detention, on the ground that said order was violative of provisions of S.51 and O. XXI, C.P.C.---Validity---Before issuing a warrant of arrest, a notice to show cause had to be given to the -debtor to explain why he should not be detained in prison and such a notice could only be dispensed with, if the court was satisfied by affidavit or otherwise that the -debtor was likely to abscond or leave local limits of the court's jurisdiction to avoid payment of decretal amount---Detention of the -debtor could only be ordered after the conclusion of the inquiry by the Executing Court subject to satisfaction of the pre-requisites of S.51, C.P.C.---No notice, in the present case, was served upon the -debtor nor any inquiry was conducted by the Executing Court before passing order of detention---Impugned order was therefore, violative of S.51 and O. XXI, R. 37 & 40 of the C.P.C.---High Court set aside the impugned order---Appeal was allowed, in circumstances. JUDGMENT ABDUS SATTAR ASGHAR, J.--Through this F.A.O. Talib Hussain judgment debtor has assailed the order dated 13-4-2012 passed by learned Executant Court to send him to 'civil prison for one year due to non-payment of decretal amount. 2. It is argued by learned counsel for the petitioner that the impugned order is against law and facts, violative to the provisions of Sections 51 and Order XXI, Rule 37 of the Code of Civil Procedure, 1908 causing miscarriage of justice and liable to set aside. 3. It is resisted by learned counsel for the respondent/decree holder with the contentions that appellant/judgment debtor having knowledge of the decree after appearing before the learned Executing Court later on willfully disappeared to avoid the payment of decreetal amount; that his attendance was procured by the learned Executing Court through issuance of non-bailable warrants, therefore, impugned order is lawfully passed to execute the money decree. 4. Arguments heard. Record perused.…

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