BASHIR AHMAD vs JUDGE BANKING COURT-I, GUJRANWALA DIVISION

MIAN HAMID FAROOQ, J.---Facts necessary for the decision of the present appeal are that pursuant to passing of the decree for recovery of Rs.3,75,817, against the appellant, by the learned Banking Court, vide judgment and decree dated 16-11-1998, the decree-holder initiated execution proceedings and appellant's mortgaged property was put to auction through the Court Auctioneer, however, the same could not be sold for one reason or the other. According to the appellant. in obedience to the orders passed by the Honourable Supreme Court, the questioned property was demarcated and the report whereof was filed before the learned Banking Court, but even then it could not be sold. Ultimately the learned Banking Court issued notice to the appellant/judgment- debtor under Order XXI, rule 37, C.P.C., which was succeeded by warrants of arrest of the appellant, vide order dated 5-4-2004. The appellant filed an application for the withdrawal of the warrants of arrest, but the said application was dismissed by the learned Banking Court, vide order dated 8-4- 2005, hence the present appeal.

2. Despite service of the respondent-Bank through its Branch Manager, none has entered appearance to defend this appeal, hence the respondent No. 2 is proceeded ex Parte.

3. Learned counsel for the appellant has contended that the mortgaged property is available for sale and without auction of the same, the warrants of arrest could not be issued. He has relied upon Haji Fazal Elahi & Sons through Muhammad Tariq v. Bank of Punjab and another 2004 CLD 162 and Mirza Shahid Baig v. National Bank of Pakistan and 8 others 2002 CLD 623. He has further contended that the warrants of arrest were issued by the learned Banking Court without complying with the provisions of section 51, C.P.C., therefore, the impugned order is not sustainable. He has relied upon Muhammad Anwar v. Shaukat Ali and another 2000 CLC 1086 and Precision Engineering Ltd. and others v. The Grays Leasing Limited PLD 2000 Lahore 290.

4. As regards the first contention of the learned counsel, upon the examination of the record, we find that the said plea was not raised before the learned Banking Court and it was never dealt with and decided by the learned Banking Court. In view whereof, the appellant is precluded from agitating the said ground before this Court for the first time. Under the law a litigant cannot be allowed to raise altogether a new and different plea before the appellate/revisional Court, which was not raised before the lower forums. Reference can be made to Anwar Ali and others v. Manzoor Hussain and another 1996 SCMR 1770 and Amir Shah v. Ziarat Gul 1998 SCMR 593.

5. Proviso to section 51, C.P.C. envisages that execution by detention in prison shall not be ordered unless Executing Court is satisfied that the judgment-debtor had means to pay the decretal amount and he has refused to pay the amount or that he is leaving the territorial limits of the Court or would defeat decree by transferring the property during the pendency of the lis. It is settled law by now that the detention of a judgment-debtor, in execution of the decree, cannot be ordered unless and until prerequisites of section 51, C.P.C. viz. the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court; to obstruct the decree had transferred the property; the judgment-debtor has means to pay the amount of decree and refuses or neglects to pay and that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account, to the satisfaction of the Executing Court are proved. Reference can be made to the judgments reported as Ghulam Hussain v. Riaz Ahrnad 1987 CLC 1227; Munsif Dad v. WAPDA PLD 1991 Azad J&K Syed Shaffat Hussain v. Kamran Khokhar 2000 MLD 801; Precision Engineering Ltd. and others v. Grays Leasing Limited PLD 2000 Lahore 290 and Muhammad Anwar v. Shaukat Ali and another 2000 CLC 1086.

6. Placing the principles of law laid down by this Court in the said cases in juxtaposition with the facts of the case and the impugned order, we feel that the learned Banking Court, while issuing the warrants of arrest of the judgment-debtor, has completely ignored the law laid down by this Court.

Strangely enough, the learned Banking Court, without adhering to the provisions of Proviso to section 51, C.P.C. and in complete oblivion of the law on the subject, proceeded to issue warrants of arrest of the judgment-debtor.

7. In the above perspective, we have examined the impugned order and find that without satisfaction of conditions laid down in section 51, as noted above, no mechanical order for detention of a judgment-debtor in prison could be passed and thus the impugned order, to the extent of issuance of warrants of arrest of the appellant, is not sustainable in law and we are inclined to set it aside.

8. Upshot of the above discussion is that the present appeal is allowed and the impugned order dated 5-4-2005, to the extent of issuance of warrants of arrest of the appellant, and 8-4-2005 are set aside with no order as to costs. Needless to mention that in case respondent-Bank's application, under section 51, C.P.C. for arrest and detention of judgment-debtor, is pending or filed in future, the same shall be decided by the learned Banking Court in accordance with law and on it own merits in view of the provisions of section 51, C P as discussed in the judgment.