IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2061 of 2010 (M/S) Dalip Singh Mehta S/o Sri Gopal Singh ..… Petitioner Versus State Bank of India and others ..… Respondents Shri Lok Pal Singh, Advocate for the petitioner. Shri S.K. Jain, Advocate for the respondents. Hon’ble Tarun Agarwala, J. Heard Shri Lok Pal Singh, the learned counsel for the petitioner and Shri S.K. Jain, the learned counsel for the respondents. The petitioner is the judgment debtor and has filed the present writ petition for the quashing of the order dated 23rd October, 2010 passed in execution proceedings whereby the Executing Court has directed the arrest and civil imprisonment of the petitioner for 15 days. The facts leading to the filing of the present writ petition is, that the petitioner apparently took a loan from the bank and failed to repay the amount. The Bank instituted a suit for the recovery which was decreed in the year 2007. The said decree has become final since the petitioner did not challenge the decree before a higher forum. Subsequently, the decree holder filed an application for the execution of the decree. It is stated that the petitioner as well as the guarantor appeared and sought time to pay the amount and, inspite of time being granted by the Executing Court, failed to pay the amount. The learned counsel for the petitioner submitted that the order of the trial court issuing direction for the arrest is against the provision of Order 21 Rule 37 and 38 of the C.P.C. since no satisfaction with regard to the fact that the judgment debtor is delaying the proceedings was recorded by the Executing Court. In support of his submission, the learned counsel for the petitioner 2 placed reliance upon a decision of the Supreme Court in Jolly George Varghese and another Vs. The Bank of Ochin (1980) 2 SCC 360, in which, it was held that if the judgment debtor bona fide is unable to pay his debt, the order of detention under Order 21 Rule 37 of the C.P.C. would be violative of Article 21 of the Constitution of India. Having perused the aforesaid judgment and, having heard to the submission of the learned counsel for the petitioner, this court is of the opinion that the petitioner is not entitled for any relief. The court finds that the petitioner has not challenged the decree and has admitted to the decree. There is no whisper that he is unable to pay the debts. In fact, his pleadings throughout is, that he should be granted time so that he could clear the debt. The Court further finds that on the date when the impugned order was passed, the petitioner did not appear. The Court, consequently, had no choice but to issue a warrant of arrest since the petitioner was absconding. This order, in my opinion, was passed in consonance with the principles enunciated under Rule 21 Rule 37 and 38 of the C.P.C. The judgment cited by the learned counsel for the petitioner is clearly not applicable since the said judgment proceeded on the basis that the judgment debtor was unable to pay of his debts, in which case the arrest amounted to infringement of his liberty as guaranteed under Article 21 of the Constitution of India. In the present case, no such plea has been made by the petitioner. The writ petition is dismissed. (Tarun Agarwala, J.) Dated 15th December, 2010 Shiv