Law:

Section:

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)-------Ss. 9, 19 & 22---Civil Procedure Code (V of 1908), S.51 & O.XXI, R.37---Constitution of Pakistan (1973), Art.199---Constitutional petition---Issuance of warrants of arrest of -debtor by the Banking Court at the very outset in execution proceedings of an ex parte decree without prescribed notice and without conducting inquiry contemplated under S.51 and O.XXI, R.40, C.P.C.---Ground given in the order of arrest so early in the execution process was that -debtor was likely to leave the country at any time---Validity---Held, an order for issuance of warrants of arrest was illegal unless preceded by an enquiry expressing satisfaction of executing Court that conditions for arrest as specified in S.51, C.P.C. were duly met---Failure by the Banking Court to have conducted the requisite enquiry and to have omitted to apply its judicial mind to the criteria and the factual material for ordering arrest of a -debtor constituted a fatal error that vitiated the order of arrest---High Court declared the order of arrest to be illegal, without lawful authority and of no legal effect---Petitioner was directed to face the execution proceedings before the Banking Court which shall proceed strictly in accordance with law in the matter of realization of the decretal amount from the -debtors---Principles. An order for issuance of warrants of arrest would be illegal unless preceded by an enquiry expressing satisfaction of executing Court that conditions for arrest as specified in section 51, C.P.C. are duly met. In the first instance, notice has to be given to the -debtor to explain as to why he should not be detained in prison. On his appearance the Court has to make an inquiry, record evidence, give opportunity of evidence in rebuttal and thereafter to pass an order on the request for detention in prison, in accordance with law. During these proceedings the -debtor can be asked, to furnish security for appearance, which does not mean security for the payment of decretal amount. Without making any inquiry the Court cannot straightaway order detention in civil prison. Likewise, unless the…

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