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2014 DIGILAW 1341 (PNJ)

MAL SINGH v. STATE BANK OF INDIA

2014-09-24

BHARAT BHUSHAN PARSOON

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JUDGMENT : BHARAT BHUSHAN PARSOON, J. 1. Decree dated 13.08.2007 for recovery of Rs. 5,36,597/- passed by Civil Judge [Junior Division], Fazilka is under execution. Vide order dated 12.10.2012, conditional warrants of arrest were issued against the petitioners-Judgment Debtors [JDs] Vide impugned order, objections of JDs against execution of the decree were dismissed. Various pleas had been raised by the JDs including rate of interest allowed by the Court. Borrowing was made by the JDs from the Decree Holder-bank [DH] on mortgage of other properties, details of which have been elaborately given in the impugned order as well. It is a clear case where JDs though, have sufficient means to satisfy the decree, are avoiding to make payment of the decretal amount. Hearing has been provided to counsel for the parties. 2. Learned counsel for the petitioners contends that issuance of warrants of arrest when their property mortgaged with the bank is available, impedes provisions of Section 51 as also Rule 37 of Order XXI C.P.C. 3. Learned counsel for the respondent-bank has urged that when the petitioners-JDs are not coming forward to make payment of the decretal amount, there was no option left with the Executing Court but to issue conditional warrants of arrest against them. 4. Vide order of 16.1.2013 of this Court, on an undertaking given by the petitioners-JDs that they would deposit an amount of Rs. 3.00 lacs with the respondent-Bank within one week, it was observed that the matter was to be resolved by amicable settlement between the parties. Settled amount thereafter was to be paid by 30.04.2013. 5. From the order dated 22.02.2013 of this Court, it is further clear that an amount of Rs. 3.00 lacs was paid by the JDs in terms of earlier order of 16.1.2013 and efforts were being made for settlement between the parties. From perusal of the orders passed by this Court thereafter, it is apparent that neither any settlement came forward nor any further payment was made by the JDs. 6. 3.00 lacs was paid by the JDs in terms of earlier order of 16.1.2013 and efforts were being made for settlement between the parties. From perusal of the orders passed by this Court thereafter, it is apparent that neither any settlement came forward nor any further payment was made by the JDs. 6. Since there is collateral security in the shape of mortgaged land with the bank, it is to exhaust all the remedies available to it to recover the decretal amount and merely because on one date of hearing the sale warrants issued for attached property of the petitioners-JDs had been received back unexecuted as there was no body to give bid, was not to be a circumstance with the Executing Court to reach a hurried conclusion as under:- ".... It appears that there is no possibility of satisfying the decree except by way of arrest and detention of both the judgment debtors namely Mal Singh and Piar Singh in civil prison..." 7. The Executing Court is to record a positive finding as to the fact that there is no possibility of satisfying the decree except by way of arrest. Merely because it 'appeared' to the Court that there is no possibility to satisfy the decree, is not equivalent of satisfaction' statutorily required under Section 51 as also in terms of Rule 37 of Order XXI C.P.C. to be recorded by the Court before proceeding to resort to arrest and detention of the JDs. Sequelly the impugned order does not stand legal scrutiny. The revision petition is accepted and the impugned order is set-aside. The Executing Court would firstly resort to the assets including immovable properties of the JDs lying as collateral security with it or otherwise for satisfaction of the decree.