2023 C L D 1238
[Balochistan (Sibi Bench)]
Before Nazeer Ahmed Langove and Iqbal Ahmed Kasi, JJ
Messrs WELCOME PRINCE RICE MILL through Partners ---Petitioner
Versus
NATIONAL BANK OF PAKISTAN through Manager and another ---Respondents
Constitutional Petition No. (s) 81 of 2022, decided on 20th March, 2023.
Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) ---
----S. 19--- Civil Procedure Code (V of 1908), S. 51(e), proviso, O. XXI, Rr. 37 & 66---
Execution of decree---Arrest of judgment debtor ---Statutory notice, non- issuance of ---Effect -
--Petitioner was judgment debtor who was arrested during execution of decree for non-
payment of decretal amount ---Validity ---Though vast powers were given to Executing Court
but it was also legislative intention to protect citizen from personal humiliation in the capacity of a judgment debtor ---Law provided mode of execution of decrees by way of
issuing warrants of arrest but the same was subject to issuance of notice to judgment debtor --
-Executing Court without issuance of notice to petitioner to explain his position issued his
warrants of arrest, which was against mandate of such provision of law ---There was nothing
on record to show that petitioner was ever served with such notice as contemplated in S. 51, C.P.C. read with O. XXI, R. 37, C.P.C. and had also failed to fulfill requirements of O. XXI, R. 66, C.P.C. for simple reason that no notice was issued to petitioner prior to issuance of his warrants of arrest ---Executing Court committed serious illegality and material irregularity
while passing order in question, which was not permissible under the law --- High Court
directed Executing Court to proceed in accordance with the provision of S. 51, C.P.C. read with O. XXI, R. 37, C.P.C., and set aside order of arrest of petitioner passed by Executing Court ---Constitutional petition was allowed accordingly.
Khursheed Anwar Khosa for Petitioner.
Muhammad Ali Khushnood for Respondents.
Date of hearing: 22nd February, 2023.
JUDGMENT
IQBAL AHMED KASI, J. ---The instant Constitutional Petition, filed under Article
199 of the Constitution of Islamic Republic of Pakistan, 1973 ('the Constitution') carries the following prayer clause:
"It is, respectfully, prayed that this Hon'ble Court may kindly be pleased to declare
the impugned order dated 06.04.2022, passed by Banking Court Balochistan, Quetta
may kindly be set aside.
Further prayed that the respondent may kindly be directed to allow the petitioner to pay the remaining loan amount in easy installments in the interest of justice, equity and fairplay.
Any other relief which this Hon'ble Court deems fit and proper may kindly also be granted in the interest of justice."
2. Briefly stated facts of the case are that two different suits were filed, one by the
petitioner and other by the respondent/Bank. In Suit No.53 of 2011, it was averred by the respondent/Bank that the petitioner applied for cash finance facility under Rice/Paddy seasonal policy for the seasons 2009- 2010, for the purpose of procurement for Paddy and
storage of rice husking as defined under Financial Institutions (Recovery of Finances)
Ordinance, 2001, for an amount of Rs.15.000 million, which request was duly entertained by
the respondent/Bank, through sanction advise dated 09th January 2010, and expiry of the same was 31st August 2010. In order to secure the finance the appellant/defendant mortgaged his own property and charge over the same is still lying in the record of rights in
the name of respondent/Bank and appellant also executed personal guarantee, but on his
default in repayment of said loan/financial facility, the respondent/Bank, filed a suit before the Judge Banking Court of Balochistan, Quetta ('the trial Court') for recovery of Rs.16,424,703/ -.
The Suit No.15 of 2011, was filed by the petitioner against the Bank, wherein, though
he admitted sanction of loan by the Bank in his favour, but further contended that due to flood disaster at Dera Allah Yar, the mortgaged/pledged stocks/goods along with factory/mill
etc. has been destroyed, therefore, he was not in a position to return the loan amount. It was further averred in the suit that the above situation was brought in the knowledge of the Bank as well as Governor State Bank of Pakistan, but no heed was paid and the instant suit was filed.
3. In the first round of litigation, Suit No.53 of 2011 filed by the Bank, was decreed vide
judgment dated 12.03.2012 and similarly the Suit No.15 of 2011, filed by the petitioner was dismissed, vide judgment dated 30.06.2011. The petitioner feeling aggrieved, challenged both the judgments by way of filing separate appeals before this Court, which were allowed and matter was remanded back to the trial Court, in which leave to defend the suit was granted to both the parties in both suits, with the directions to frame the issues and provide opportunity to both the parties to lead their evidence and then decide the matter accordingly.
4. After remand, the trial Court in Suit No.53 of 2011, filed by the Bank, framed the
following issues:
"i) Whether the plaintiff Bank is entitled for the decree of Rs.16,424,703/ - against the
defendants?
ii) Whether the defendants had paid any amount towards the loan amount to the plaintiff/Bank?
iii) Whether the written statement filed by defendants does not fall for complying the
provisions of section 10(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001?
iv) Whether the defendants willfully committed default in making the payment towards the outstanding finance amount of the plaintiff?
v) Whether the plaintiff/Bank is entitled for the relief claimed for?
In Suit No.15 of 2011, filed by the petitioner, following issues were framed:
"i) Whether the plaintiff is entitled for the decree against the defendants?
ii) Whether the suit is not maintainable in view of legal objections raised by the defendants in their written statements?
iii) Whether the plaintiff willfully committed default in making the payment towards the outstanding finance amount to the defendant Bank for Rs.16,424,703/ -?
iv) Whether prior to flood disaster accrued in August 2010 and plaintiff/mill owner forcibly lifted the pledge stock in May 2010 and defendant No.3 on his visit on 31.05.2010 found pledge stock missing for Rs.17,958,000/ -?
v) Whether the defendant No.3 and Taibeh Associates (Pvt.) Ltd.; (Muqaddam) lodged FIR # 276/2010 against the plaintiff?
5. After framing issues, in both the suit, the parties were directed to file affidavits of
their respective witnesses and accordingly affidavit of one Mr. Asif Khalique, being Manager NBP, Dera Murad Jamali was filed and also attached all the relevant documents with the same.
6. Despite availing several opportunities, the petitioner neither appeared nor put cross -
examination over the affidavit, rather, during the course of arguments also none appeared on behalf of the petitioner, therefore, the trial Court heard arguments from other side and decided the matter on the basis of available record.
7. The trial Court, after fulfilling the codal formalities, vide judgment and decree dated
30th April, 2021, decreed the Suit No.53 of 2011, in favour of the respondent/Bank, along with cost of the fund @ Rs.7.07% per annum, with cost of the suit and the mortgaged property of the petitioner/defendant was also attached in favour of the respondent/Bank, whereas, the Suit No.15 of 2011, filed by the petitioner was dismissed.
8. Upon the application of the respondent/Bank, execution proceedings were
commenced and during its pendency, the trial Court/Executing Court, vide order dated 06.04.2022 ('the impugned order') issued fresh warrant of arrest of the petitioner, hence this petition.
9. We have heard the learned counsel for the parties and have gone through the record of
the case. Before dilating upon the merits of the case, it would be appropriate to reproduce the impugned order, passed by the executing Court, which read as under:
10. The prayer clause of the petitioner to the extent of allowing the petitioner to pay the
remaining loan amount in easy installments, is concerned, the same is not competent before
this Court for want of alternate remedy before the trial Court, however, the petitioner may agitate this ground before the trial Court, if desires so.
11. As far as the prayer clause to the extent of impugned order dated 06.04.2022, is
concerned, it appears that the executing Court, issued warrants of arrest of the petitioner, without adopting the procedural fairness, which is the right of every citizen without creating distinction between the decree- holder or the judgment -debtor. The impugned order clearly
offend the modes of execution of a decree, as prescribed in section 51 of the C.P.C. In order to better appreciate the issue in hand, we feel it expedient to reproduce section 51, C.P.C., which reads as under:
"51. Power 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 effect of obstructing or delaying the
execution of the decree, --
(i) is likely to abscond or leave the local limits 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 his property; or
(b) that the judgment -debtor has, or has had since the date of the decree, the means to pay
the amount of the decree or some substantial part thereof and refuses or neglects or
has refused or neglected to pay the same, or
(c) that the decree is for a sum for which the judgment -debtor was bound in a fiduciary
capacity to account."
Notwithstanding the above vast powers given to the executing Court, it is also the legislative intention to protect the citizen from personal humiliation in the capacity of a judgment debtor, therefore, though the law provides the mode of execution of the decree by way of issuing warrants of arrest, but the same is subject to issuance of notice to the judgment -
debtor. In the instant case, the executing Court, without issuance of notice to the petitioner to explain his position, issued his warrants of arrest, which is against the mandate of above provision of law. There is nothing on record to show that petitioner was ever served with such notice as contemplated in section 51, C.P.C. read with Order XXI, Rule 37, C.P.C. The executing Court also failed to fulfill the requirements of Order XXI, Rule 66, C.P.C., for simple reason that no notice was issued to the petitioner prior to issuance of his warrants of arrest. Consequently, the executing Court had committed serious illegality and material irregularity while passing the impugned order, which is not permissible under the law.
For the forgoing facts and circumstances, we are of the considered view that there
was no lawful justification for the learned executing Court for passing the impugned order, for issuance of warrants of arrest of the petitioner without issuance of notice, hence, we are inclined to partly allow the instant petition, set aside the impugned order dated 06.04.2022, passed by the executing Court and direct the executing Court to proceed with the execution proceedings, strictly, in accordance with the provisions of section 51, C.P.C. read with Order XXI, Rule 37, C.P.C.
MH/115/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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