CR No.5862 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.5862 of 2008 DATE OF DECISION: 14.12.2009 **** Mohd. Jamil . . . . Petitioner VS. Davinder Kaur and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Mohd. Salim, Advocate for the petitioner. **** RAKESH KUMAR JAIN J. (ORAL) This is a petition under Article 227 of the Constitution of India for setting aside the order dated 16.8.2008 (Annexure P-1) passed by the District Judge, Sangrur whereby, the warrants of arrest for detaining the petitioner in civil prison was issued. The Respondents before the Court are the complainants in a Motor Accidents Claim No.24 F 31.1.2001 filed on account of death of Harbhajan Singh against the present petitioner (Mohd. Jamil) and the driver (Shoukat Ali) of the offending vehicle. Learned Motor Accident Claims Tribunal, Sangrur (for short ‘the Tribunal’) vide order dated 4.3.2003 allowed the claim petition and awarded compensation to the tune of Rs.5,28,000/-. The order passed by the Tribunal reads as under: - “In view of my findings of the issues above, I am of the opinion that the present claim petition must CR No.5862 of 2008 -2- succeed. I, therefore, allow the same and direct Shoukat Ali and Mohd. Jamil respondents to pay the amount of compensation of Rs.5,28,000/- jointly and severally to the claimants and Surjit Kaur respondent for causing the death of Harbhajan Singh in a road accident, I accordingly allow a sum of Rs. One Lac as compensation to Surjit Kaur respondent No.4. The remaining amount of compensation would be equally distributed among the three claimants. The share of minors shall be deposited in a long term fixed deposit bearing interest. The claimants would be entitled to withdraw quarterly interest accruing thereon. Amount of compensation shall be paid within 30 days from today failing which the respondent shall be liable to pay the same with costs interest at the rate of 9% per annum since the filing of the claim petition i.e. 30.1.2001 till realization. Counsel fee is assessed at Rs.2000/-.” The claimants/respondents filed an application for execution of the award of Tribunal claiming a sum of Rs.6,83,993/- but despite opportunity the amount of compensation was not deposited by the petitioner. Thus on 6.8.2008, the learned Executing Court passed the following order: - “Today, DH has filed affidavit in support of his application U/o 21 Rule 37 CPC add in view of contents of the application, I am satisfied that the JDs No.1 and 3 having had the occasion and opportunity to comply with the award, have not made the payment of the same, let their warrant of arrest for detaining them in civil prison be sent at the first instance for one month of DH’s depositing a sum of Rs.100/- as diet money per day for each of them, within a period of seven days and on furnishing warrant fee, fro 3.10.2008.” CR No.5862 of 2008 -3- Aggrieved against the aforesaid order, the petitioner has filed the present petition and has argued that before passing the order of warrants of arrest, it was incumbent upon the Court to issue show- cause-notice. He referred to the provisions of Order 21 Rule 37 of the CPC, which reads as under: “Order XXI Rule 37 CPC: 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 the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall instead of issuing a warrant of 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 committed to the civil prison.” Notice of motion was issued in this case on 24.10.2008 to respondents No.1 to 3 and in the meantime, warrants of arrest was stayed. Learned counsel for the petitioner has argued that since the provisions of Order 21 Rule 37 are mandatory and no show-cause- notice was not given, therefore, the impugned order is illegal and deserves to be set aside. After hearing learned counsel for the petitioner, I am of this view that this petition deserves to be dismissed in view of proviso to Order 21 Rule 37 which reads as under: - “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 CR No.5862 of 2008 -4- the decree, the judgment-debtor is likely to abscond or leave the local limit of the jurisdiction of the court” According to the proviso, show-cause-notice is not required to be sent 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 limit of the jurisdiction of the court. The Court can always pass the order of securing the presence by putting the judgment-debtor in the civil imprisonment. In this case also, the decree holder had filed an affidavit on the basis of which learned Court below has been satisfied and thereafter the order of arrest of petitioner has been passed. In view of the above, I do not find any merit in the present petition and as such the same is hereby dismissed. (RAKESH KUMAR JAIN) DECEMBER 14, 2009 JUDGE vivek