Civil Revision No. 5978 of 2011 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No. 5978 of 2011 Date of decision. 28.09.2011 Parma Nand .... Petitioner Versus Haryana State Cooperative Supply & Marketing Federation Ltd., Shahabad, District Kurukshetra through its Manager ...... Respondent CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr.Pritam Saini, Advocate for the petitioner. **** Vijender Singh Malik, J. This revision petition is brought by the judgment debtor, Parma Nand under the provisions of Article 227 of the Constitution of India for setting aside the order dated 16.8.2011 (Annexure P-4) vide which learned Additional District Judge, Kurukshetra/Executing Court, had ordered to send the petitioner to civil imprisonment. The order is claimed to be contrary to the provisions of the Code of Civil Procedure and principles of natural justice. The execution application had been filed putting the award made by Additional General Manager (F&A) HAFED-cum-Arbitrator, Panchkula to execution. Vide the said award, the Arbitrator awarded a sum of Rs.5668/- in favour of the Haryana State Cooperative Supply and Marketing Federation(for short 'the HAFED') and against the second party Civil Revision No. 5978 of 2011 --2-- i.e. the petitioner. However, the arbitrator had made conditional award by further observing that in case the second party failed to deposit the amount of award within three months, then the second party would be liable to pay a sum of Rs.22,672/- to the first party i.e. HAFED with interest @ 15% per annum till the date of deposit. As already said, the said award had been put to execution in the said execution petition. An application has been filed for issuance of arrest warrant and sending the judgment debtor to civil imprisonment. It is claimed in the application that the judgment debtor is avoiding his service intentionally and as per the knowledge of the decree holder, there is no property in the name of the judgment debtor, from which the award could be satisfied. It was further averred in the application that on the last date of hearing i.e. 28.05.2011 the judgment debtor was present in the court in person claiming the execution application to be pending since long and there being no chance of recovery of the amount from him except by sending him to prison, the prayer was made. The application was opposed by the judgment debtor claiming the same to be not maintainable as the ingredients of section 51 and Order 21 Rule 37 of the Code of Civil Procedure were not satisfied in this case. He has claimed that he has no adequate means to satisfy the decree and therefore, the execution application as well as the application for sending him to civil imprisonment are liable to be dismissed. He has also denied having disposed of any property from the date of passing of the decree till the day. It is also averred that there is no allegation in the Civil Revision No. 5978 of 2011 --3-- application of the decree holder that there is likelihood of judgment debtor absconding or leaving the local limits of the jurisdiction of the court or that the judgment debtor has willfully disobeyed the orders of the court. Denying any property to be there in his name or his having adequate means of income to satisfy the decree, the application is prayed to be dismissed. Hearing learned counsel for the parties, learned Additional District Judge, Kurukshetra/Executing Court allowed the application and ordered warrant of arrest of the judgment debtor to be issued for 17.09.2011. Aggrieved by the said order, the judgment debtor has brought this revision petition. I have heard Shri Pritam Saini, learned counsel for the petitioner and have gone through the record. Learned counsel for the petitioner has submitted that the award was only for a sum of Rs.5668/- and the petitioner is ready to pay this amount. According to him, the requirements of section 51 and Order 21 Rule 37 of the Code of Civil Procedure have not been satisfied in this case and, therefore, the petitioner cannot be ordered to be sent to civil imprisonment. He has, therefore, submitted that the impugned order is contrary to the provisions of Code of Civil Procedure and is, thus, liable to be set aside. One of the modes of the execution, as laid down in section 51 of the Code of Civil Procedure is by arrest and detention in prison. The Civil Revision No. 5978 of 2011 --4-- proviso added to the section lays down the conditions precedent for resorting to the mode of arrest and detention in prison while enforcing execution. Before ordering detention in prison, it is laid down that the court shall give the judgment debtor an opportunity to show cause why he should not be committed to prison and the court is required to be satisfied for the reasons recorded in writing that the judgment debtor with a view to obstruct or delay the execution of the decree is likely to abscond or leave the local limits of the jurisdiction of the court or 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. The court could order detention in prison of a judgment debtor if it finds that the judgment debtor had the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or had refused or neglected to pay the same. It can also order detention in prison of the judgment debtor if the decree has been for a sum for which the judgment debtor was bound in a fiduciary capacity to account . Under Order 21 rule 37 of the Code of Civil Procedure, the court dealing with an application for execution of a decree for payment of money by arrest and detention of the judgment debtor in civil imprisonment is required to exercise its discretion of issuing a notice calling upon him to appear before the court and show cause why he should not be committed to civil imprisonment instead of issuing a warrant of his arrest . This course would not be required to be adopted if Civil Revision No. 5978 of 2011 --5-- the court was satisfied by affidavit or otherwise that the judgment debtor was likely to abscond or leave the local limits of the jurisdiction of the court with the object of delaying the execution of the decree. The judgment debtor had not questioned the award and the same has become final. He admittedly did not pay the amount of Rs.5668/- within the time of three months, allowed for the purpose of satisfying the award. In default thereof, his liability under the award became Rs.22,672/-. It is a fact that the judgment debtor has no property in his name and there is, therefore, no likelihood of his disposing of the same with a view to avoid payment under the decree. The offer even made today for payment of Rs.5668/- would show that the judgment debtor has means to pay the decretal money. The provisions of section 51 and Order 21 Rule 37 of the Code of Civil Procedure stand complied with in this case because notice was given to the judgment debtor to show cause why he should not be committed to civil imprisonment in execution of the decree for payment of money. It is after hearing him that the order has been made of issuing warrant of arrest. In this way, no fault can be found with the impugned order. The revision petition, therefore, merits dismissal and is dismissed as such. (VIJENDER SINGH MALIK) JUDGE 28.09.2011 dinesh