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Revision Application No.328 of 1986, decided on 19th November, 1986.

‑‑‑Ss.51 & 115‑‑Arrest of judgment‑debtor‑‑Legality of‑‑Order passed by Court below for arrest of judgment‑debtor in execution proceedings without complying with provisions of S.51, C.P. C. , held, was not in accordance with law‑‑High Court in exercise of revise al jurisdiction setting aside illegal order, remanded case for decision afresh in accordance with law.

S.S. Hamid for Applicant.

Abbas Ali for Respondent.

Date of hearing: 19th November, 1986.

The case is fixed today only for hearing of Misc. application. However, with the consent of the learned counsel for the parties I have heard the main Revision and is disposed of as follows:‑------

This Revision is against the order dated 2‑9‑1986 passed by the District Judge, Karachi West, ordering arrest of the applicant/J. D. in execution of a decree passed in Suit No.63 of 1985. The order passed by the learned District Judge, reads as follows:‑---

"Heard counsel. Issue warrants of arrest of J.D. Decree‑holder to deposit diet money for one month's costs Hg."

Learned counsel for the applicant contends that the order passed by the learned District Judge, reproduced above offends against the provisions of section 51 of the C.P.C. Learned counsel for the respondent on the other hand contends that there has been persistent default by the applicant/J. D. in paying the amount of decree after the suit was decreed. It may be true that the J.D. has failed and neglected to pay the amount but in order to pass an order for his arrest in execution of the decree the requirements as set forth in section 51 of the C . P. C . are to be complied with. Section 51 reads as follows:‑

"51. Powers of Court to enforce execution.‑‑--

Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree‑holder, order execution of the decree:‑‑

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison;

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require:

Provided that execution by detention in prison shall not be ordered unless, after giving the judgment‑debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied:‑

(a) that the judgment‑debtor, with the object or of effect of obstructing or delaying the execution of the decree:‑‑

(i) is likely to abscond or leave the local limit of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to property; or

(b) that the judgment‑debtor has, or has had since the date of the decree, the mean to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to the same, or

(c) that the decree is for a sum for which the judgment‑debtor was bound in a fiduciary capacity account."

A bare reading of the above section will show that before arrest could be ordered of a judgment‑debtor in execution of a decree he is to be given an opportunity of showing cause against his committal in prison. Apart from it, before ordering arrest the Court has to give a finding that the Judgment‑debtor with the object of obstructing and delaying the execution is likely to abscond or leave the local limits of the Court; or he has after institution of the suit dishonestly transferred, concealed or removed any part of his property or committed some act of bad faith in relation thereto, or that the Judgment‑debtor has means to pay the whole or a part of the decree but has refused and neglected to pay the same or that the sum decreed was with the Judgment‑debt of in a fiduciary capacity. The impugned order in this case does not fulfil the requirements as laid down in section 51, C.P.C. and as such the order of arrest passed by the learned District Judge, is not in accordance with law. I accordingly accept this Revision Application, set aside the impugned order and remand the case back to the District Judge, West, with the direction to dispose of the application under Order XXI, rule 37 filed by the Decree‑holder in accordance with law. There will be no order as to costs. The parties are directed to appear before the District Judge, West, on 30th November, 1986 on which date the District Judge will take further proceedings in the case as directed above.

H.B.T./G‑5/K Revision accepted.

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