Stereo.HCJDA 38.

Judgment Sheet
IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
….
Writ Petition No. 6111 of 2018

Muhammad Ali
Versus
Wali Muhammad, etc.

JUDGMENT
Date of hearing: 08.06.2021

Petitioner by: Sh. Muhammad Rafiq Goreja,

Advocate.

Respondent No.1 by: Mr. Muhammad Masood Bilal,

Advocate.

AHMAD NADEEM ARSHAD, J. Unnecessary details apart,

the facts as divulged in this petition are the respondent

No.1/plaintiff instituted a suit for recovery of Rs.30,00,000/-

against the petitioner on the basis of cheque which, after full-

fledged trial, was decreed vide judgment and decree dated

10.04.2010. Feeling aggrieved, the petitioner preferred an appeal

before this Court, which was dismissed through judgment and

decree dated 29.04.2015. Respondent No.1/plaintiff, for the

satisfaction of the decree, filed an execution petition before the

learned trial Court (Addl. District Judge, Burewala) which was

entrusted to Civil Judge Ist Class, Burewala for further process.

During proceeding of the execution petition, the learned executing

 Writ Petition No.6111 of 2018 2

Court issued non-bailable warrant of arrest of the judgment-debtor

for the satisfaction of the decree vide order dated 17.01.2018.

Feeling aggrieved, the petitioner/judgment-debtor filed revision

petition before the learned Addl. District Judge, which was

dismissed vide order dated 07.03.2018. The learned executing

Court in continuation of its earlier order dated 17.01.2018, issued

non-bailable warrant of arrest against the petitioner/judgment-

debtor vide order dated 28.03.2018 and 19.04.2018, respectively.

The petitioner assailed the aforesaid orders by invoking the writ

jurisdiction.

3. Learned counsel for the petitioner states that

impugned orders being illegal are liable to be set-aside; that

execution petition was filed before the learned Addl. District

Judge, Burewala, who erroneously entrusted the same to the

learned Civil Judge, Burewala for execution in utter disregard of

mandatory provision of law contained in Section 39 of C.P.C.;

that the order for arrest and detention of the petitioner /judgment-

debtor was passed against the provisions contemplated by Section

51 and Order XXI Rule 37 and 40 C.P.C.; that in presence of

surety’s land the issuance of warrant of arrest is violative of the

provisions of law and it was just and equitable for the executing

Court to evade the fate of the sale process before adopting other

coercive measures against the petitioner/judgment-debtor and

prayed for setting-aside of the above said orders. He relied upon

 Writ Petition No.6111 of 2018 3

the following case laws. “HABIB AHMAD versus Haji MUNIR

AHMAD” (2004 YLR 1540). “V. Ganesa Nadar v. K. Chellathai

Ammal” (AIR 1989 MADRAS 8), “TALIB HUSSAIN versus Mst.

PARVGEEN AKHTAR” (PLD 2013 Lahore 129), “AZAD

GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR

through Chief Secretary versus MAHBOOB ASLAM KHAN and 4

others” (2013 CLC 300), “MUHAMMAD ANWAR versus

SHAUKAT ALI and another” (2000 CLC 1086), “KAMRAN

ELAHI versus JUDGE BANKING COURT and others” (2007

CLD 936), “MUHAMMAD ASHRAF versus Mst. SAFIA BIBI”

(2008 CLC 1583), “PRECISION ENGINEERING LTD and

others versus THE GRAY LEASING LIMITED” (PLD 2000

Lahore 290).

4. Conversely, learned counsel appearing on behalf of

the respondent No.1/decree-holder strongly opposed the

contentions raised by the petitioner by submitting that the learned

Courts below passed the orders in question, strictly in accordance

with law keeping in view the provisions of law and principles set-

forth by the Apex Court and circumstances of the case; that

Rs.30,00,000/- is required to be paid by petitioner/judgment-

debtor but in order to linger on the execution proceedings

adopting different dilly dally tactics.

5. I have heard the submissions made by both learned

counsel for the parties and minutely perused the record of the
 Writ Petition No.6111 of 2018 4

lower court with their help and able assistance and also considered

the case laws referred by the petitioner.

6. From perusal of file, it transpires that complete order

sheet and all the relevant documents are not available on the file.

Since the petitioner has invoked the Constitutional jurisdiction of

this Court therefore, he was duty bound to annex all the relevant

documents with the petition. It is easy for the Court to dismiss the

petition on this ground but to do the complete justice between the

parties and to decide the lis on merits, record of the learned

Executing Court was requisitioned and perused.

7. It transpires from the record that the decree-holder

filed the execution petition on 18.06.2015 before the learned

Additional District Judge, Burewala, who passed the decree at the

first instance, inter alia with the prayer that decretal amount be got

recovered from the judgment-debtor; that in alternate, the decretal

amount be recovered from the attachment and auction of the

property of surety and for the satisfaction of the decree every legal

proceeding be initiated. The learned Addl. District Judge

transferred the execution petition to the Court of learned Civil

Judge Ist Class for further proceedings. The Executing Court

issued notices vide order dated 20.06.2015 in the name of

judgment-debtor and surety. In response to the notices, power of

attorney on behalf of the judgment-debtor was submitted and a

request for adjournment was made in order to produce the

 Writ Petition No.6111 of 2018 5

injunctive order issued by the District Court. On 26.10.2015, the

learned Executing Court, on the verbal request of the decree-

holder, with the contention that the judgment-debtor was

intentionally causing delay for the satisfaction of the decree,

issued non-bailable warrant of judgment-debtor. The judgment-

debtor moved an application on 28.11.2015 for re-calling of the

said order of issuance of non-bailable warrant and also offered

that the property of the surety be attached and auctioned. The

learned Executing Court vide order dated 05.01.2016 accepted the

application for auction of the surety’s property and started

proceeding in this regard. Thereafter, the case was being

adjourned due to miscellaneous proceedings i.e, attachment of

surety’s property, assessment of value of the surety’s property,

auction of the surety property. In the meanwhile, the decree-holder

moved an application on 03.03.2017 to the learned Executing

Court with the prayer that a reference be moved before the Worthy

District Judge for the entrustment of the execution petition to a

competent Court. The learned trial Court, considering the no

objection of the judgment-debtor’s side, accepted the application

and sent the reference to the learned District Judge for proper

order. The reference was put up before the learned District Judge,

who vide order dated 09.03.2017 entrusted the execution petition

to the Court of Mr. Syed Shuja Ali Haider, Civil Judge, Burewala

for further proceedings. On 11.10.2017, when no one appeared on

 Writ Petition No.6111 of 2018 6

behalf of the judgment-debtor, on the verbal request of decree-

holder, the learned Executing Court issued show cause notice for

summoning the judgment-debtor. The judgment-debtor did not

appear in response to that show cause notice. Thereafter, the

decree-holder requested for summoning of the judgment-debtor in

person and the learned Executing Court vide order dated

22.11.2017 directed the counsel of judgment-debtor to produce

judgment-debtor in person on the next date of hearing, but the

judgment-debtor failed to appear before the learned executing

Court, therefore, on asking of decree-holder, the learned

Executing Court issued non-bailable warrant vide order dated

19.12.2017. The judgment-debtor moved an application for

recalling the said order of issuance of warrant of arrest on

22.12.2017. For better understanding some past events are also

relevant. On 14.09.2017, the learned Executing Court for

conducting auction of the surety’s property assessed its value. The

surety challenged that order while filing revision and after its

dismissal, filed Writ petition No.17309-2017, whereby, this Court

vide order dated 14.12.2017 suspended the operation of the

impugned orders subject to notice and deposit of Rs.10,00,000/-

(ten lac) within one month. On the production of this order, the

learned executing court vide order dated 11.01.2018 adjourned the

proceeding to 17.01.2018 for compliance of the order of the Court

regarding deposit of Rs.10,00,000/- (ten lac). But the judgment-

 Writ Petition No.6111 of 2018 7

debtor as well as surety failed to comply with the order of this

Court. Therefore, on the request of the decree-holder, in

continuation of the past orders i.e. 18.12.2017 and 22.12.2017, the

learned Executing Court again issued non-bailable warrant of

arrest of the judgment-debtor vide order dated 17.01.2018. The

petitioner filed revision petition against that order which was

dismissed by the learned Revisional Court vide order dated

07.03.2018. The petitioner by concealing all the past proceedings

and withholding all the relevant documents, challenged the order

dated 17.01.2018 of the learned Executing Court and order dated

07.03.2018 of the learned Revisional Court through the instant

Writ Petition. Although, the basic orders of Executing Court

regarding issuance of non-bailable warrant were 26.01.2015 and

19.12.2017 but which were not assailed by the petitioner.

8. The first objection of the petitioner was that the

learned Addl. District Judge has no jurisdiction to transfer the

decree before the Court of learned Civil Judge Ist Class under

Section 39 of C.P.C.

9. The decree-holder was conscious of the objection of

the judgment-debtor; therefore, he moved an application before

the learned Executing Court that a reference be put forward before

the Worthy District Judge for the entrustment of the execution

petition to a competent Court. The learned Executing Court, in the

light of no objection from the judgment-debtor’s side, accepted

 Writ Petition No.6111 of 2018 8

the application vide order dated 03.03.2017 and forwarded the

reference to the Worthy District Judge for proper order, who vide

order dated 09.03.2017 entrusted the execution petition to the

Court of Mr. Syed Shuja Ali Haider, Civil Judge for further

proceedings. In this way, the proceedings conducted after

09.03.2017 was in the light of the transfer order of Worthy

District Judge, who was competent to transfer the proceedings

under section 24 of the Code of Civil Procedure, 1908. Now

coming to the legal question, whether the Court of first instance,

who passed the decree, is competent to transfer the

decree/execution petition to any other competent Court for

satisfaction of the decree and further progress. The decree of the

Court of last instance is to be executed, as the decree of the Court

of first instance merged into the decree of last instance. The Court

of first instance who passed the decree has jurisdiction to execute

it himself or transfer it to a competent Court. A decree may be

executed either by the Court to which passed it as defined in

section 37 of the C.P.C. or by the Court which it is sent for

execution under section 39 of C.P.C. It may also be executed by

the Court to whom the proceedings were transferred under section

24 or section 150 of C.P.C.

10. The decree-holder filed execution petition on

18.06.2015 before the Court of learned Addl. District Judge, who

passed the decree at first instance. The learned Addl. District

 Writ Petition No.6111 of 2018 9

Judge, after receiving the execution petition, transmitted it to the

learned Civil Judge Ist Class, for further proceedings in the

following terms vide order dated 18.06.2015.

‫ ابتدائ بحث سماعت بادی النظر میں کونسل ڈگریدار کا‬-‫"کونسل ڈگری دار حاضر‬

‫موقف درست معلوم ہوتا ہے۔ لہذا درخواست ہزا بغرض سماعت فاضل عدالت جناب‬

‫مرزا محمد اعظم صاحب سول جج درجہ اول بورے واال سپرد کی جاتی ہے۔ ڈگری‬

‫ روبرو فاضل عدالت پیش ہوے۔‬26.06.2015 ‫دار کو ہدایت ہوی کہ بتقرر‬

Bare reading of above order reflects that the learned Addl.

District Judge did not transfer the decree, but he only transferred

the execution proceedings for further progress. As already

discussed, the Court has jurisdiction to execute the decree itself or

through any other Court to whom it is sent.

11 In order to better appreciation Sections 37, 38 and 39

of Civil Procedure Code, 1908 are being reproduced as under:

“Sec. 37.---Definition of Court which passed a decree.---

The expression “Court which passed a decree,” or words to
that effect, shall, in relation to the execution of decrees,
unless there is anything repugnant in the subject or context,
be deemed to include,--

(a) Where a decree to be executed has been passed

in the exercise of appellate jurisdiction, the
Court of first instance, and

(b) Where the Court of first instance has ceased to

exist or to have jurisdiction to execute it, the
Court which, if the suit wherein the decrees
was passed was instituted at the time of making
the application for the execution of the decree,
would have jurisdiction to try such suit.

“Sec. 38 Court by which decree may be executed.

 Writ Petition No.6111 of 2018 10

A decree may be executed either by the Court which passed

it, or by the Court to which it is sent for execution.”

“Sec.39 Transfer of decree.---(1) The Court which passed

a decree may, on the application of the decree-holder, send
it for execution to another Court,--

(a) If the person against whom the decree is passed

actually and voluntarily resides or carries on
business, or personally works for gain, within the
local limits of the jurisdiction of such other Court, or
(b) If such person has no property within the local limits
of the jurisdiction of the Court which passed the
decree sufficient to satisfy such decree and has
property within the local limits of the jurisdiction of
such other Courts or
(c) If the decree directs the sale or delivery of immovable
property situate outside the local limits of the
jurisdiction of the Court which passed it or
(d) If the Court which passed the decree considers for
any other reason which it shall record in writing, that
the decree should be executed by such other Court

(2) The Court which passed a decree may of its own

motion send it for execution to any subordinate Court of
competent jurisdiction.”

From the bare reading of above quoted provisions, it

appears that a decree may be executed either by the Court which

passed it, or by the Court to which it is sent for execution. Section

39 of the C.P.C. deals with the transfer of decree. There are two

parts of Section 39 of the C.P.C. Subsection (1) of Section 39 of

the C.P.C. deals with transfer of a decree on the application of

decree-holder and Subsection (2) of Section 39 of the C.P.C.

empowers the court passing decree to send it for execution to any

subordinate Court of competent jurisdiction. In subsection (1) of

Section 39 of the C.P.C. four described eventualities, have been

explained in (a), (b), (c), and (d) when the decree-holder can apply
 Writ Petition No.6111 of 2018 11

for the transfer of decree. In subsection (2) of Section 39 of the

C.P.C. the Court, who passed the decree, is competent to send it

for execution to any subordinate Court of competent jurisdiction.

The words “Subordinate Court” and “Competent Jurisdiction” are

significant. Necessary conditions for sending a decree for

execution to another Court are that it shall be a Court of

subordinate to the Court which passed the decree and secondly

that it shall be a Court of competent jurisdiction. The jurisdiction

may be territorial and pecuniary and competent jurisdiction may

be that the Court has power to try the suit and jurisdiction to

execute the decree. Keeping in view the legal proposition as

described in Sections 37, 38 and 39 of the C.P.C., the learned

Additional District Judge has jurisdiction to send the

decree/execution petition for its execution and further proceedings

to the subordinate Court, who is also a competent Court as has

possessed the territorial and pecuniary jurisdiction. Therefore, the

contention of learned counsel for the petitioner has no force.

Learned Executing Court has the jurisdiction to adjudicate the

decree and the execution petition was rightly sent by the court of

first instance for further progress.

13. The second objection of the petitioner is that non-

bailable warrant issued by learned Executing Court is against the

mandatory provisions of Order XXI Rule 37, 40 and Section 51 of

the C.P.C. There may be two types of proceedings before the

 Writ Petition No.6111 of 2018 12

executing Court. Firstly, for making presence of the judgment-

debtor before the Court and secondly, for sending him to the jail

for the satisfaction of the decree. The learned counsel appearing

before the Court tried to mix-up both the situations in order to get

a favourable order.

For the satisfaction of a decree, the executing Court, after

institution of the execution petition, issues a notice to the

judgment-debtor for a day to be specified in the notice and asks

him why he is not paying the decretal amount and warn him, if he

will not pay the decretal amount, he should be detained in prison.

If he fails to appear in response to that notice, then the Court is

empowered to issue a warrant of arrest. This procedure is provided

in Order XXI Rule 37 of C.P.C. which is as under:-

“37. Discretionary power to permit judgment-debtor to

show cause against detention in prison,-- (1)
Notwithstanding anything in these rules, where an
application is for the execution of a decree for the payment
of money by the arrest and detention in [-] prison of a
judgment-debtor who is liable to be arrested in pursuance of
the application, the Court, [shall], instead of issuing a
warrant for his arrest, issue a notice calling upon him to
appear before the Court on a day to be specified in the
notice and show cause why he should not be [detained in]
prison;

[Provided that such notice shall not be necessary if the

Court is satisfied, by affidavit, or otherwise, that, with the
object or effect of delaying the execution of the decree, the
judgment-debtor is likely to abscond or leave the local
limits of the jurisdiction of the Court.]

(2) Where appearance is not made in obedience to the

notice, the Court shall, if the decree-holder so requires,
issue a warrant for the arrest of the judgment-debtor.”
 Writ Petition No.6111 of 2018 13

High Court Amendment Lahore (22.08.2018):

For rule 37, the following shall be substituted:

“37. Discretionary power to allow judgment-debtor an

opportunity to show good cause against detention in
prison.-

(1) Notwithstanding anything in the rules, where a decree

for the payment of money is sought to be executed
through arrest and detention in prison of the judgment-
debtor, the Court may, before issuing a warrant of arrest,
provide one opportunity to the judgment-debtor to show
good cause as to why he should not be detained in prison:

Provided that such opportunity shall not be necessary if

the Court is satisfied, by affidavit or otherwise, that, with
the object of delaying the execution of the decree, the
judgment-debtor is likely to abscond or leave the local
limits of the jurisdiction of the Court.”

(2) Where the judgment-debtor fails to avail himself the

opportunity or is unable to show a good cause, the Court
shall, if the decree-holder so requires, issue a warrant for
the arrest of the judgment-debtor.”

The Lahore High Court, Lahore, while introducing

amendments in the Code of Civil Procedure, 1908, on 22.08.2018

substituted order XXI Rule 37 C.P.C. Although this amendment is

notified and implemented w.e.f. 01.11.2020, however, this

amendment is not applicable upon the case of the petitioner as it

was notified much after the date of impugned orders.

When the judgment-debtor, in obedience of the notice or

after arrest appears before the Court, then the Court, after hearing

the decree-holder and taking all evidence in support of the

execution application, provides an opportunity to the judgment-

debtor to explain his position why he is not satisfying the decree

 Writ Petition No.6111 of 2018 14

and warned, if he will not pay the decretal amount, he shall be

detained in prison. After completion of the inquiry, the Court will

make an order for detention of the judgment-debtor in prison

subject to the provision of section 51 of C.P.C. For better

understanding, the order XXI Rule 40 C.P.C. is being reproduced

as under: -

“40. Proceedings on appearance of judgment-debtor in

obedience to notice or after arrest. -- (1) when a
judgment-debtor appears before the Court in obedience
to a notice issued under rule 37, or is brought before the
Court after being arrested in execution of a decree for
the payment of money, the Court shall proceed to hear
the decree-holder and take all such evidence as may be
produced by him in support of his application for
execution, and shall then give the judgment-debtor an
opportunity of showing cause why he should not be
[detained in] prison.

(1) Upon the conclusion of the inquiry under sub-rule (1)

the Court may, subject to the provisions of section 51
and to the other provisions of this Court, make an order
for the detention of the judgment-debtor in [-] prison and
shall in that event cause him to be arrested if he is not
already under arrest:

Provided that in order to give the judgment-debtor an

opportunity of satisfying the decree, the Court may,
before making the order of detention, leave the
judgment-debtor in the custody of an officer of the Court
for a specified period not exceeding fifteen days or
release him on his furnishing security to the satisfaction
of the Court for his appearance at the expiration of the
specified period if the decree be not sooner satisfied.

(2) A judgment-debtor released under this rule may be re-

arrested.

(3) When the court does not make an order of detention

under sub-rule (3), it shall disallow the application and,
if the judgment-debtor is under arrest, direct his release.]
 Writ Petition No.6111 of 2018 15

In Order XXI Rule 40 C.P.C. it has been mentioned that the

order of detention in prison is made subject to section 51 of C.P.C.,

which means that detention order in prison be made if the

conditions specified in section 51 C.P.C. are fulfilled. Before

further discussion, it is better to go through section 51 C.P.C.

which reads as under:-

“51. Powers of Court to enforce execution. – Subject to

such conditions and limitation 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 decree:

(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, 2*** 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
 Writ Petition No.6111 of 2018 16

(c) that the decree is for a sum for which the

judgment-debtor was bound in a fiduciary
capacity to account.”

It has clearly been mentioned in section 51 of the Code of

Civil Procedure, 1908 that before passing an order of detention of

judgment-debtor in prison, the Court is bound to record the

reasons in writing that he is satisfied that the judgment-debtor,

with the object or effect of obstructing or delaying the execution

of the decree is likely to abscond or leave the local limits of the

Court, or has, after the institution of the suit, dishonestly

transferred, concealed, or removed any part of his property, or

committed any other act of bad faith in relation to his property, or

has the means to pay the amount of decree or some substantial

part thereof and refuses or neglects or refused or neglect to pay the

same or the decree is for a sum for which the judgment-debtor was

bound in a fiduciary capacity of account. The division Bench of

this Court in its judgment reported as “MUHAMMAD ANWAR

versus SHAUKAT ALI and another” (2000 CLC 1086) explained

it as under: -

Order 21, Rule 37 of C.P.C. contemplates that where an

application is for execution of decree for payment of
money by arrest and detention in prison of the judgment-
debtor, who is liable to be arrested in pursuance of an
application, the Court shall, instead of issuing a warrant,
for his arrest, issue a notice calling upon him to appear in
Court and to show cause, why he should not be detained in
prison. Notice can be dispensed with only if the Court is
satisfied by affidavit or otherwise that with the object of
delaying execution of decree, the judgment-debtor was
likely to abscond or leave the local limits of jurisdiction of
the Court. Sub-rule (2) of Rule 37 of C.P.C. provides that if
appearance is not made in obedience of the notice, the
 Writ Petition No.6111 of 2018 17

Court shall, if the decree-holder so requires, issue a

warrant for arrest of the judgment-debtor. Under Rule 40
or 41 of C.P.C., when the judgment-debtor appears before
the Court in obedience of the notice or is brought before
the Court, after being arrested in execution of decree, the
Court is required to proceed for hearing the decree-holder
and to, take such evidence as may be produced by it in
support of the application for execution, where after the
judgment-debtor has to be given an opportunity of showing
cause why he should not be detained in prison. Pending
conclusion of the inquiry, the Court has the discretion to
order that the judgment-debtor be detained in custody of
an officer of the Court or be released on furnishing of
security to the satisfaction of the Court, for his appearance
when required. It is only after the conclusion of inquiry
that the Court can order for the detention of judgment-
debtor in prison, which order will be subject to the
satisfaction of pre-conditions of section 51 of C.P.C.
Section 51 of C.P.C. requires existence of certain pre-
conditions to detain the judgment-debtor in prison. Proviso
to section 51 of C.P.C. contemplates that the execution by
detention in the 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 to be recorded in writing is satisfied that the
judgment-debtor, with the object of obstructing or delaying
execution of decree, is likely to abscond or leave the local
limits of jurisdiction of the Court or has, after institution of
the suit, in which 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 the judgment-debtor has or has had since the
date of decree, the means to pay the amount of decree or
substantial part thereof and refuses or neglects or has
refused or neglected to pay the same or that the decree is
for a sum for which the judgment-debtor was found in
fiduciary capacity of account.”

15. In this case, from the perusal of record, it appears that

non-bailable warrant of arrest was issued in the name of

petitioner/judgment-debtor for just procuring his attendance. The

learned Executing Court, first time issued the non-bailable warrant

of judgment-debtor on 26.10.2015 and it was repeated on

30.11.2015 but thereafter this process was withheld on the

 Writ Petition No.6111 of 2018 18

application of judgment-debtor, when he offered for the

attachment and auction of the property of surety for the

satisfaction of the decree but thereafter he himself created hurdle

to stop the attachment process and auction proceedings by moving

different types of applications. The decree-holder, keeping in view

the behavior of the petitioner, requested for issuance of show-

cause notice to the judgment-debtor for satisfaction of the decree

but in-spite of issuance of that show-cause notice, the judgment-

debtor failed to appear. Thereafter, on the request of decree-holder,

learned Executing Court directed the learned counsel for the

judgment-debtor to produce the judgment-debtor in person but

inspite of that order, neither the judgment-debtor was produced

nor he himself bothered to appear before the Court. Therefore,

keeping in view all the facts and circumstances of the case, in

order to procure his presence, the learned Executing Court issued

non-bailable warrant of judgment-debtor vide order dated

19.12.2017. After scanning of complete order sheet, it reveals that

issuance of non-bailable warrant was only for personal attendance

of judgment-debtor. Order XXI Rule 37(2) of the C.P.C. clearly

suggests that where the appearance of judgment-debtor is not

made in-spite of issuance of notice, the Court has power to issue

warrant for the arrest of judgment-debtor. The exact wording of

order XXI Rule 37(2) C.P.C. is as under: -

 Writ Petition No.6111 of 2018 19

“Where appearance is not made in obedience to the notice,

the Court shall, if the decree-holder so requires, issue a
warrant for the arrest of the judgment-debtor.”

The order of learned Executing Court regarding

issuance of non-bailable warrant to procure the attendance of

judgment debtor is also quite in accordance with law.

16. Epitome of above discussion is that the impugned

orders passed by both the learned lower Courts are in accordance

with law. Learned counsel for the petitioner has failed to point out

any irregularity or illegality in these orders warranting

interference by this Court in exercise of its constitutional

jurisdiction. Both above said orders are hereby upheld. Resultantly,

the instant writ petition being without any force is hereby

dismissed. No order as to costs.

(AHMAD NADEEM ARSHAD)

JUDGE

Approved for Reporting

Judge

A.Razzaq*