CR No. 5413 of 2010 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CR No. 5413 of 2010 (O&M) Date of Decision : 27.08.2010 Balwinder Kaur .......... Petitioner Versus Balwinder Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Vaibhav Sehgal, Advocate for the petitioner. **** VINOD K. SHARMA, J. (ORAL) This revision petition under Article 227 of the Constitution of India is directed against the order dated 12.8.2010, passed by the learned executing Court. The impugned order reads as under :- “Interlocutory Order. File taken up today. In pursuance of conditional warrants of arrest issued by this court, JD produced before this Court by HC Ranjit Singh. At this stage, an application u/o 21 rule 40 and another application for reviewing the order has been filed. Copies of the same supplied to the opposite counsel who is present in the court. Till the pendency of these application, the respondent is ordered to be released and now to come up CR No. 5413 of 2010 -2- ***** on 31.8.2010. Reply to the above said application be filed on the date fixed i.e. 31.8.2010.” The contention of the learned counsel for the petitioner is, that the impugned order can not be sustained, as the respondent has been released without imposing any condition, as envisaged under Order 21 Rule 40 of the Code of Civil Procedure has been passed. The revision petition is totally misconceived. The reading of the impugned order shows, that the conditional warrants of arrest were issued for presence of the JD in the Court, it was only on his appearance, that an application was moved by the petitioner under Order 21 Rule 40 of the Code of Civil Procedure. There is no order of arrest of the petitioner in execution of the decree. It is well settled law that before ordering arrest of judgment debtor in execution of decree, it is incumbent on the executing Court to record a finding, that the judgment debtor intentionally was not making the payment of the decree, even he is having means to do so. It is only in that eventuality that the judgment debtor can be sent to civil imprisonment. On the application moved under Order 21 Rule 40 of the Code of Civil Procedure, notice has been issued to the respondents, and he has only been ordered to be released pending decision of application. The contention of the learned counsel for the petitioner, that there is non-compliance of Order 21 Rule 40 of the Code of Civil CR No. 5413 of 2010 -3- ***** Procedure, is thus prima facie misconceived, as no order has been passed on the application moved by the petitioner till date. No merit. Dismissed. 27.08.2010 (VINOD K. SHARMA) 'sp' JUDGE