Pakistan Case LawSHAFFAT HUSSAIN Versus KAMRAN KHOKHAR
This civil revision petition challenges an order of the Additional District Judge directing the petitioner's imprisonment for failure to satisfy a decretal amount. The core legal question is whether a judgment debtor can be committed to civil prison without the executing court first conducting an inquiry and recording findings regarding the debtor's ability to pay or intent to evade the decree, as required by the Code of Civil Procedure 1908. The petitioner contended that the trial court failed to comply with the mandatory procedural prerequisites of Section 51 and Order 21, Rules 37 and 40 of the Code of Civil Procedure 1908, specifically by failing to conduct an inquiry or pass a speaking order. The Court held that the impugned order was passed mechanically without satisfying these statutory requirements. Consequently, the Court suspended the impugned order and directed the petitioner's release from prison, subject to the petitioner furnishing third-party security for his appearance before the executing court. The principle established is that an executing court cannot order the detention of a judgment debtor without first conducting an inquiry and passing a speaking order that establishes the debtor's willful refusal to pay or fraudulent intent to defeat the decree.
- Can an executing court order the imprisonment of a judgment debtor without conducting an inquiry into their ability to pay?
- Is a court required to pass a speaking order before committing a judgment debtor to civil prison?
- What are the mandatory procedural requirements under the Code of Civil Procedure 1908 for the detention of a judgment debtor?
ORDER .
Main allegation of the petitioner is that without complying with the prerequisites of section 51 of C.P.C. and Order 21, Rules 37 and 40 of C.P.C., the learned Additional District Judge proceeded to send the petitioner in prison, with the condition that he should remain there unless the decretal amount is paid. It is alleged that the petitioner could not have been sent to prison unless it is proved that he had the means to pay the decretal amount and refused to pay the amount or that, he was leaving the territorial limits of Court or he will intend to defeat decree, transferred property during the pendency of the suit. It is added that no inquiry was conducted nor a speaking order was passed and in a mechanical manner the petitioner was directed to be lodged in the prison. Prima facie there appears to be substance in the submissions of learned counsel for the petitioner. Impugned order does not appear to be speaking one nor appears to have been passed after complying with the provisions of section 51 of C.P.C. In this view of the matter the impugned order is suspended and it is directed that subject to furnishing of third person simple security for appearance of petitioner before learned Additional District Judge, the petitioner should be released from prison. Main petition be listed for hearing on 3‑2‑2000.
Order accordingly.
Cited by 3 cases
Judges on this bench
- Syed Najam-ul-Hasan Kazmi254 judgments