MUHAMMAD ASHRAF Versus Mst. SAFIA BIBI

MAULVI ANWARUL HAQ, J .--- A decree for recovery of money passed in favour of the respondent and against the petitioner is being executed by a learned ADJ, Layyah, who proceeded to arrest the petitioner and sent him to civil prison vide order dated 13-4-2005.

2. Learned counsel for the petitioner contends that the impugned order having been passed without complying with the mandatory provisions of law is without jurisdiction. Learned counsel for the respondent, on the other hand, tries to support the impugned order by stating that the petitioner is not paying the decretal amount.

3. I have examined the copies of the records. I find that the execution application was filed on 4-6-2004 on which date a notice was issued to the petitioner for 2-7-2004. On this date it was noted that the petitioner has refused to accept service. Bailable warrants for his arrest were issued for 23-7-2004. On this date, non-bailable warrants for his arrest were issued for 20-8-2004. Ultimately, the order dated 13-4-2005 was passed.

4. The detention of a judgment-debtor can be ordered in accordance with section 51 read with Order XXI, rule 40, C.P.C. The condition precedent for passing such an order is a finding to be recorded by the Court to the effect that it is satisfied that any of the circumstances mentioned in sub-clauses (a), (b) and (c) to the proviso to section 51 A C.P.C. read with explanation thereto exists. I do not find any such finding recorded by the learned trial Court. The impugned order accordingly is set aside. The civil revision is allowed. The learned Executing Court shall proceed strictly in accordance with the said provisions of law if the decree-holder wants him to be detained. No orders as to costs.

H.B.T./M-277/L Petition allowed.