SABAR ALI SAJID vs MUHAMMAD MAQSOOD

ORDER

' MUHAMMAD JEHANGIR ARSHAD, J.---The petitioner who is a judgment-debtor is aggrieved of the order dated 10-12-2005 passed by District Judge/Executing Court, Toba Tek Singh whereby the learned District Judge issued warrant of arrest of the petitioner in execution proceedings.

2. It has been argued by the learned counsel for the petitioner that the order dated 10-12-2005 has been passed in clear disregard to the provisions contained in section 51(1) as well as Order XXI, Rule 37, C.P.C. Inasmuch as the impugned order neither shows the proper application of mind by the learned Executing Court nor even fulfills the requirements of law for issuance of warrant of detention.

3. Learned counsel for the decree-holder, on the other hand, submits that the impugned order was valid in law and that as the Executing Court failed to procure the attendance of the petitioner after adopting all the necessary mea has sores there was no option left with the learned Executing Court except to pass the detention order of the petitioner through the impugned order.

4. Arguments of the learned counsel for the parties have been considered and record perused.

5. There is no denial of the fact that in terms of section 51(1) read with Order XXI, Rule 37, C.P.C. The Executing Court has got the power to order the arrest and direct the detention of the judgment- debtor even without notice where the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor was likely to abscond and leave the local limits of the jurisdiction of the Court. The above mentioned provisions therefore, A require that before issuing the order of detention/arrest the Executing Court has to satisfy that the judgment-debtor is likely to abscond and leave the local limits of the trial Court and such satisfaction must be expressed with reasons and after proper application of mind to the facts and circumstances of the case which are badly lacking in the present case. The impugned order dated 10-12-2005 is not only a teleprompter order but has been passed without any notice or for that matter without satisfying that the petitioner was likely to abscond or leave the local limits of the jurisdiction of the learned Executing Court. Further the order does not disclose proper application of mind nor does it contain even a single reason for dispensing with requirement of notice in terms of section 51(1) and Order XXI, Rule 37,C.P.C.

6. In this view of the above this civil revision is allowed and order dated 10-12-2005 is set aside and the learned Execution Court is directed to pass fresh order after complying with the provisions of section 51(1) as well as Order XXI, Rule 37, C.P.C. The petitioner, present in Court, shall appear before the learned Executing Court on 5-6-2006 and the learned Executing Court after hearing both the parties shall pass fresh order strictly in accordance with law. In case if the petitioner fails to appear before the learned Executing Court the learned Executing Court shall be at liberty to proceed with the matter in accordance with law and unmindful of his absence.