In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 3292 of 2003 Date of decision: May 15, 2009 Gurmit Singh .. Petitioner Vs. Darbara Singh .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Pardeep Goyal, Advocate for the petitioner. Mr. G.N. Malik, Advocate for the respondent. A.N. Jindal, J The court on the application of the Decree Holder, under Order 21 Rule 37 CPC, issued conditional warrants of arrest of the judgment Debtor returnable for 23.8.2003. The record further reveals that vide order dated 7.12.2002, property of the petitioner had already been attached for effecting the sale in order to effect the recovery of the decretal amount. Rule 37 of Order 21 CPC, does not vest the court with the absolute power to issue warrants of arrest. The relevant Rule 37 of Order 21 CPC, reads as under :- “37. (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 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 committed to the civil 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.” Civil Revision No. 3292 of 2003 -2- *** There are no specific allegations that the petitioner has been leaving or likely to leave, or abscond from the local limits of the jurisdiction of the court. As per Rule 37 of Order 21 CPC, it was obligatory on the part of the court to issue notice for a specific date to show cause as to why he should not be committed to civil prison. The other essential is that in case notice is likely to delay the execution prompting the judgment debtor to leave or abscond the local limits of jurisdiction, then it would on the application supported by an affidavit, would record its satisfaction on that by delaying the execution the judgment debtor is likely to leave or abscond from the local limits of the jurisdiction of the court. Even otherwise, the Apex Court discouraged the arrest and detention being violative of Article 11 of the International Covenant on Civil and Political Rights and Article 21 of the Constitution of India. Their Lordships V.R. Krishna Iyar and R.S. Pathak, JJ, in case Jolly George Varghese and another Vs. The Bank of Cochin, AIR 1980 Supreme Court 470 observed as under :- “10. Equally meaningful is the import of Art. 21 of the Constitution of India in the context of imprisonment for non- payment of debts. The high value of human dignity and the worth of the human person enshrined in Art. 21 read with Arts. 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Meneka Gandhi's case (1978) 1 SCC 248 as developed further in Sunil Batra v. Delhi Administration (19878) 4 SCC 494, Sita Ram v. State of U.P. (1979) 2 SCR 1085 and Sunil Batra V. Delhi Administration, W.P. No.1009 of 1979 D/- 20.12.1979 (SC) lays down the proposition. It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of Daridara Narayan (land of poverty) is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Art.21 unless there is proof of the minimal fairness of his willful failure to pay in spite of his Civil Revision No. 3292 of 2003 -3- *** sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure in inferable from Art. 11 of the Covenant. But this is precisely the interpretation we have put in the proviso to S. 51 CPC and the lethal blow of Art. 21 cannot strike down the provisions, as now interpreted.” Thus, the intent and purport of the judgment is that the court before issuing the warrant of arrest is to examine the intent of debtor regarding the payment i.e. whether he is helpless to pay on account of his poverty or is intentionally running away from his liability. If the court records its satisfaction that besides sufficient means, he does not want to pay and he is leaving the local limits of the jurisdiction of the court, then the court would be well within its jurisdiction to issue warrant of arrest. In any case, the order is not covered by Rule 37 of Order 21 CPC, or the proviso thereof, as such, the impugned order is erroneous and needs interference by this Court. Resultantly, this revision petition is accepted, impugned orders are set aside and the trial court is directed to proceed in accordance with law. May 15, 2009 (A.N. Jindal) deepak Judge