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2020 DIGILAW 488 (JK)

Mohammad Aslam Sheikh v. Mohammad Ramzan Bhat

2020-09-18

SANJAY DHAR

body2020
JUDGMENT (ORAL) The instant petition has been filed by the petitioner challenging order dated 08.02.2018, passed by learned Chief Judicial Magistrate, Pulwama, in Criminal Execution Application No.12/Ex. titled Mohammad Ramzan Bhat Vs. Mohammad Aslam Sheikh. 2) Brief facts giving rise to the instant petition are that a complaint under Section 138 of Negotiable Instruments Act was laid by the respondent herein against the petitioner before the Court of Chief Judicial Magistrate, Pulwama. It appears that the matter was referred for settlement to the Lok Adalat and on 12.12.2015, the Lok Adalat recorded the statements of the parties and on the basis of said statements, an award came to be passed. In terms of the award, the petitioner agreed to pay an amount of Rs.11,93,305/ to the respondent. However, the petitioner paid only an amount of Rs.4,65,710/ and defaulted in clearing the balance amount which compelled the respondent to approach the learned trial court seeking execution of the award dated 12.12.2015 passed by the Lok Adalat. The execution application has been decided by the learned trial court vide the impugned order thereby directing that the petitioner be sent to civil prison and in case he pays the balance amount of Rs.4,65,710/ to the respondent, then shall be released forthwith. It is this order which is under challenge before this Court. 3) A preliminary objection has been raised by the learned counsel for the respondent with regard to maintainability of the petition on the ground that the award of a Lok Adalat, in terms of Section 20 of the Jammu and Kashmir Legal Services Authorities Act, is deemed to be a decree of Civil Court, as such, proceedings filed under Section 561-A of the J&K Code of Criminal Procedure are not maintainable. 4) I have heard learned counsel for the parties and perused the record of the case. 5) A perusal of the impugned order passed by the trial court reveals that the learned Presiding Officer has decided the application in his capacity as a Chief Judicial Magistrate, as is clear from the title of the impugned order. This position gets further strengthened from the fact that the learned Presiding Officer has signed the impugned order in his capacity as Chief Judicial Magistrate. Thus, it is absolutely clear that the learned trial Judge has treated the matter as one of criminal nature and not of civil nature. This position gets further strengthened from the fact that the learned Presiding Officer has signed the impugned order in his capacity as Chief Judicial Magistrate. Thus, it is absolutely clear that the learned trial Judge has treated the matter as one of criminal nature and not of civil nature. In view of this, the proceedings under Section 561-A Cr. P. C are maintainable. The contention of learned counsel for the respondent, in this regard, is, therefore, without any merit. 6) Coming to the merits of the case, it has been contended by learned counsel for the petitioner that in terms of Section 20 of the J&K Legal Services Authorities Act, an award of Lok Adalat has to be treated as a decree of the Civil Court and, therefore, the learned trial Judge could not have exercised his jurisdiction as Chief Judicial Magistrate while entertaining and deciding the execution application. According to the learned counsel, the matter was required to be determined in accordance with the procedure provided under the Code of Civil Procedure for execution of decrees. 7) There is no dispute with regard to the fact that the subject execution petition is relating to the award passed by the Lok Adalat. It is also not in dispute that the said award was passed in respect of a complaint under Section 138 of Negotiable Instruments Act. The proceedings under the said Act are criminal in nature. The question which arises for consideration is whether the settlement arrived at before the Lok Adalat in criminal proceedings is to be executed as a decree of Civil Court or the same is required to be executed in accordance with the procedure prescribed under the Code of Criminal Procedure. 8) Section 20 of the Jammu and Kashmir Legal Services Authorities Act, which is in paramateria with Section 21 of the Central Legal Services Authorities Act, reads as under: “20. Award of Lok Adalat. - (1) Every award of the Lok Adalat shall be deemed to be a decree of a civil or, as the case may be an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of section 19, the Court fee paid in such case shall be refunded in the manner provided under the Court Fees Act, Samvat 1977. (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award.” 9) From a perusal of aforesaid provision, it is clear that an award passed by a Lok Adalat is a decree of a Civil Court. The provision does not make any distinction between the reference made to the Lok Adalat by a Civil Court and by a Criminal Court. Thus, irrespective of the fact whether an award is passed by a Lok Adalat in a civil case or in a criminal case, it has to be treated as a decree of Civil Court. I am supported in my aforesaid view by the judgment of the Supreme Court in K. N. Govindan Kutty Menon v. C. D. Shaji, (2012) 2 SCC 51 . In the said judgment, the Supreme Court after discussing the case law on the subject, laid down the following propositions: 1) In view of the unambiguous language of Section 21 of the Act, every award of the Lok Adalat shall be deemed to be a decree of a civil court and as such it is executable by that Court. 2) The Act does not make out any such distinction between the reference made by a civil court and criminal court. 3) There is no restriction on the power of the Lok Adalat to pass an award based on the compromise arrived at between the parties in respect of cases referred to by various Courts (both civil and criminal), Tribunals, Family court, Rent Control Court, Consumer Redressal Forum, Motor Accidents Claims Tribunal and other Forums of similar nature. 4) Even if a matter is referred by a criminal court under Section 138 of the Negotiable Instruments Act, 1881 and by virtue of the deeming provisions, the award passed by the Lok Adalat based on a compromise has to be treated as a decree capable of execution by a civil court. 10) From the aforesaid observations of the Supreme Court, it becomes clear that an award of a Lok Adalat, whether passed in a civil case or in a criminal case, is a decree of Civil Court. A consequence of the same is that such a decree has to be executed in accordance with the procedure prescribed under the Code of Civil Procedure. A consequence of the same is that such a decree has to be executed in accordance with the procedure prescribed under the Code of Civil Procedure. 11) The provisions contained in Sections 51 to 58 of the Code of Civil Procedure provide the procedure required to be followed in the execution proceedings. Section 51 provides arrest and detention in prison as one of the modes to enforce the execution. However, proviso to said provision lays down that before a direction for detention in prison is issued, an opportunity of showing cause why such a direction should not be made, has to be given to the judgment debtor and further the Court has to be satisfied that the judgment debtor is avoiding execution of the decree. 12) Similarly, the provisions contained in Order 21 Rules 37 to 40 of the Code of Civil Procedure also provide the procedure for arrest and detention of a judgment debtor in civil prison. Sub-rule (1) of Rule 37 again castes a duty upon the Court to issue a show cause notice before issuing a warrant of arrest against a judgment debtor. Rule 39 of Order 21 of CPC provides that judgment debtor cannot be arrested in execution of a decree unless and until the decree holder pays into Court such sum as the Court thinks sufficient for the subsistence of the judgment debtor. 13) Adverting to the facts of the present case, a perusal of the impugned order shows that the procedure prescribed under the Code of Civil Procedure in the matters relating to detention of a judgment debtor in civil prison has not been followed. So even if it is assumed that the impugned order was passed by the learned Magistrate by treating the proceedings to be of civil nature, which the ld. Magistrate has not, still then the order impugned cannot sustain because the ld. Trial court has not followed the procedure prescribed for detention of petitioner in civil prison, inasmuch as no show notice has been issued to him nor the respondent has been asked to deposit the subsistence allowance. In fact, during the course of arguments, learned counsel for the respondent has fairly conceded that the impugned order deserves to be set aside. Trial court has not followed the procedure prescribed for detention of petitioner in civil prison, inasmuch as no show notice has been issued to him nor the respondent has been asked to deposit the subsistence allowance. In fact, during the course of arguments, learned counsel for the respondent has fairly conceded that the impugned order deserves to be set aside. 14) For what has been discussed hereinabove, the petition is allowed and order dated 08.02.2018 passed by learned Chief Judicial Magistrate, Pulwama, directing detention of the petitioner in civil prison, is set aside. However, it is directed that the learned trial court in its capacity as a Civil Court shall proceed in the matter by treating the award of the Lok Adalat as a decree of Civil Court and execute the same in accordance with the procedure prescribed under the Code of Civil Procedure and decide the execution petition expeditiously in accordance with the law occupying the field. 15) Copy of this order be sent to the Court of learned Chief Judicial Magistrate, for information and compliance.