IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 7249 of 2009 Date of Decision : December 14, 2009 M/s Wadhawa Mal Chanan Ram and another ....Petitioners Versus M/s Lachhman Dass Hem Raj .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. K.K.Garg, Advocate T.P.S. MANN, J. Order passed by the executing Court on 21.10.2009 has been challenged by the judgment debtors by filing the present revision under Article 227 of the Constitution of India. Vide impugned order, the executing Court allowed the application filed by the decree holder under Order XXI Rule 37 read with Section 151 C.P.C., and directed the decree holder to deposit subsistence allowance for a period of one month and on the same being done, warrants of arrest to be issued against the judgment debtors for the payment of the decretal amount alongwith interest. In its application moved before the executing Court, the decree holder averred that judgment debtors had refused to make the payment of the decretal amount and, therefore, judgment debtors be sent C.R. No. 7249 of 2009 -2- to civil imprisonment. The said application was contested by the judgment debtors by filing reply, wherein, apart from raising legal objections on the ground of maintainability, it was averred that the appeal filed by the judgment debtors against the decree under execution had not been decided and, therefore, the decree had not attained the finality. Learned counsel for the petitioners has submitted that neither the petitioners have left the local jurisdiction of the executing Court nor transferred or concealed any property from the date of the suit uptil now nor refused or neglected to pay any amount in order to satisfy the decree or any property thereto. Moreover, no show cause notice has been issued to the petitioners as to why the petitioner-Ashok Kumar, owner of M/s Wadhawa Mal Chanan Ram-judgment debtor, be not committed to prison. Therefore, the impugned order was illegal and against the mandatory provisions of Section 51 of the Code of Civil Procedure. Reliance has also been placed upon Neelam Gautam V Balwinderjit Singh @ Bikramjit @ Happy 2004(3) R.C.R.(Civil) 519 (P&H). Under Section 51 C.P.C., the executing Court has the powers to order execution of the decree by delivery, attachment and sale of any property or by arrest and detention in prison or by appointing the receiver or in such manner as the nature of relief granted might require. C.R. No. 7249 of 2009 -3- In a case of decree for payment of money, before ordering detention in prison of the judgment debtor, the executing Court is required to give an opportunity to the judgment debtor of showing cause as to why he should not be committed to prison and further the Court has to satisfy that the judgment debtor was obstructing or delaying the execution of the decree by attempting to abscond or leaving the local limits of the jurisdiction of the Court or after institution of the suit dishonestly transferred, concealed or removed any part of his property and since the date of the decree, the judgment debtor had the means to pay the amount of the decree and had refused or neglected to pay the same. In the present case, a money decree was passed on 19.1.2006 against the judgment debtors for recovery of Rs.50,000/- with interest and costs. On 9.12.2006 the decree holder applied for its execution. This was followed by another application by the decree holder under Order XXI Rule 37 C.P.C., for arrest and detention of Ashok Kumar-petitioner in civil prison in order to execute the decree. Notice of the said application was duly issued to the judgment debtors, who filed their reply dated 26.9.2007. On 16.12.2008 Ashok Kumar- petitioner made a statement before the executing Court to the following effect:- “Stated that neither do I have any property nor any business. My business has since failed. I have filed a number of recovery suits out of them two stand decreed. C.R. No. 7249 of 2009 -4- Another is a complaint pertaining to a cheque. As and when I am able to obtain any payment, I will make payment to the decree holder in the first instance”. It appears that the aforementioned statement was made by Ashok Kumar-petitioner only to tide over the situation where he was apprehensive of being sent to civil prison. No doubt, in view of the aforementioned statement the execution proceedings became delayed. Again on 4.3.2009 he made statement before the execution Court, which is also reproduced hereinbelow:- “Stated that my two/three recovery suits are pending. As and when I am able to obtain any money in the same, I will settle the matter with the decree holder and make the payment”. It is the admitted fact that in pursuance of both the aforementioned statements, the judgment debtors did not make any payment to the decree holder. Instead, an attempt had been made by them to delay the execution of the money decree passed against them. Under these circumstances, learned executing Court was well within its jurisdiction to order for detention of Ashok Kumar-petitioner in civil prison. In the case of Neelam Gautam (supra), the Court spelt out the various situations wherein the executing Court could order the execution of a decree by arrest and detention in prison of the judgment C.R. No. 7249 of 2009 -5- debtor. In the said case the executing Court had declined the application of the decree holder on the ground that he had not been able to satisfactorily establish the conditions contained in Section 51 C.P.C. The High Court, while noticing the fact that the judgment debtor had left the local limits of the jurisdiction of the executing Court and also the fact that the judgment debtor was owner of a Ford Icon Car and had disposed of one Maruti Car and a Motor Cycle, accepted the revision filed by the decree holder and directed the executing Court to execute the decree by arrest and detention of the judgment debtor in accordance with law. Similarly, in the present case, the intention of the judgment debtors in delaying the execution of the decree against them, has rightly been noticed by the executing Court in view of the fact that despite making statements in the form of a compromise twice before the executing Court, the judgment debtors had failed to make the payment of a single penny to the decree holder. In view of the above, no ground for interference in the impugned order is made out. The revision is, therefore, dismissed. ( T.P.S. MANN ) December 14, 2009 JUDGE ajay-1