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2024 DIGILAW 989 (PNJ)

Parminder Singh v. Ghanshyam Dass Sandeep Kumar

2024-07-02

RITU TAGORE

body2024
JUDGMENT Mrs. Ritu Tagore, J. CM-7240-CII-2024 This application is for placing on record zimini orders of trial Court as Annexures P-6 to P-9. Application is allowed as prayed for. Annexures P-6 to P-9 are taken on record, subject to just exceptions. CR-810-2024 This revision is directed against the order dated 18.10.2023 (Annexure P-5) passed by learned Civil Judge (Junior Division) Jagadhri in Execution Petition No.118 of 2022 titled 'M/s Ghanshyam Dass Sandeep Kumar v. Parminder Singh' whereby conditional/arrest warrant of petitioner has been issued invoking the powers under Order 21, Rule 37, the Code of Civil Procedure, 1908 (for short as ' the CPC'). 2. The learned counsel for the petitioner submits that petitioner undertakes to appear and join the proceedings before the learned Executing Court and present his version as permissible under the law. It is stated that an ex parte judgment and decree dated 29.10.2021 (Annexure P-1) was passed against the petitioner for a recovery of Rs. 10,39,443/- alongwith interest @ 6% per annum, pendent-lite and future, in a civil suit bearing No.217 of 2018 titled as M/s Ghanshyam Dass Sandeep Kumar v. Parminder Singh, instituted by proprietor/manager Sh. Pradeep Kumar of M/s Ghanshyam Dass Sandeep Kumar against him. However, the petitioner was never served in the said suit and had no intention of avoiding submission to the jurisdiction of the Court. The learned counsel submits that the petitioner intends to take appropriate steps, as permissible under the law, to assail the judgment and decree (Annexure P-1), which has not yet been contested. Learned counsel submits that fresh conditional warrant of arrest has been issued against the petitioner, to be executed through SHO, Chhappar, returnable for 31.07.2024, in the execution proceedings filed by the respondent for execution of judgment and decree (Annexure P-1). It is urged that the petitioner undertakes to put an appearance before the learned Executing Court on/ before the date fixed i.e. 31.07.2024 and prays that till then his liberty be protected. In support his contention relies upon a judgment of co-ordinate Bench of this Court in Major Singh and another v. M/s Murli Trading Company, 2023 (2) Law Herald (P&H) 1353. 3. I have heard learned counsel for the petitioner and have gone through the case file and other documents placed on record with his valuable assistance. 4. In support his contention relies upon a judgment of co-ordinate Bench of this Court in Major Singh and another v. M/s Murli Trading Company, 2023 (2) Law Herald (P&H) 1353. 3. I have heard learned counsel for the petitioner and have gone through the case file and other documents placed on record with his valuable assistance. 4. Keeping in view the limited prayer made in the present petition, I am of the considered view that issuing notice to respondent at this stage would only further delay the proceedings before the learned Executing Court and further keeping in view of the order that is being passed. 5. It is a matter of record that respondent filed a civil suit mentioned above, that was decreed ex parte. As per the observation made by the learned trial Court in para No.3 of the judgment (Annexure P-1), the petitioner (defendant before the learned trial Court) was served with the notice but he did not put up appearance and was proceeded ex parte. The petitioner has assailed the aforesaid fact by stating that he was never served and intends to challenge the judgment and decree passed against him ex parte. 6. Further, it is suffice to say that the respondent filed an execution petition for execution of the judgment and decree (Annexure P-1). The notice of the same was issued to the petitioner (JD). The zimini order dated 01.07.2022 (Annexure P-4) indicates that the notice was received back with the report of refusal through his wife. Accordingly, the petitioner was proceeded ex parte and a warrant of attachment of his property was ordered to be issued. Zimini order dated 19.04.2023 (Annexure P-8) further reveals that the warrant of attachment of property of the petitioner (JD) was not issued for want of filing of list of the property of the petitioner(JD). Instead, an application for issuance of conditional warrant of arrest of the petitioner was filed, and accordingly, a conditional warrant of petitioner was ordered to be issued. Other zimini orders passed in the execution petition, placed on record, reveal that a fresh conditional warrant of arrest through the assistance of SHO Chhappar has been passed, returnable for 31.07.2024. 7. At this stage, the relevant provision under the Rules of Order 21 CPC needs to be noticed . Rule 37 and 38 reads as under:- "37. Other zimini orders passed in the execution petition, placed on record, reveal that a fresh conditional warrant of arrest through the assistance of SHO Chhappar has been passed, returnable for 31.07.2024. 7. At this stage, the relevant provision under the Rules of Order 21 CPC needs to be noticed . Rule 37 and 38 reads as under:- "37. Discretionary power to permit judgment-debtor to show cause against detention in prison.-(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.] (2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor. 38. Warrant for arrest to direct judgment-debtor to be brought up.-Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the costs (if any) to which he is liable, be sooner paid." 8. The warrant of arrest has been issued against the petitioner-JD as he failed to put an appearance in the execution proceedings (Annexure P- 2) filed against him. It is trite law that detention in civil prison in execution of a decree is the last resort and before that an endeavour should be made for the satisfaction of a decree. The purpose of issuance of warrant of arrest against the petitioner is to secure his presence and to ask him to satisfy the decree passed against him. It is trite law that detention in civil prison in execution of a decree is the last resort and before that an endeavour should be made for the satisfaction of a decree. The purpose of issuance of warrant of arrest against the petitioner is to secure his presence and to ask him to satisfy the decree passed against him. The petitioner also seeks to join the proceedings and undertakes to appear before the learned Executing Court on or before the date fixed before the learned Court and present the contentions as permissible under the law. 9. Accordingly, the present petition stands disposed of with direction to the petitioner to put up appearance before the Executing Court on or before 31.07.2024 and till the said date the petitioner be not arrested pursuant to the warrant of arrest issued in the execution proceedings, for having defaulted to put in appearance. 10. In case of default on part of the petitioner, this order shall stand automatically vacated. 11. Before parting with this order, it is observed that since the present order has been passed without giving notice to respondent, however, he would be at liberty to move an appropriate application, if has any grievance to make. It is made clear that the observations made above shall not cause any prejudice to the respondent in filing any revision. 12. It is noted that the observations made above should not be construed as an expression of opinion on the merits of the case. Same are purely confined to the present controversy and deliberations. 13. Pending applications, if any, also stands disposed of accordingly.