Mukesh kesh v. Surender
Case Details
CR-5421-2025 (O (O&M) -1- 118 Surender Mukesh IN THE HIGH COURT OF PUNJA IN TH AT CHANDIGAR UNJAB AND HARYANA IGARH -.- CR-5421-2025 (O&M) CR Decided on :- 13.08.2025 Deci VERSUS ....Petitioner ....Respondents CORAM : HON HON'BLE MS. JUSTICE MANDE NDEEP PANNU te and Mr. Sushil Bhardwaj, Advocate and Present: Mr. S ate for the petitioner. Ms. Devanshi Sharma, Advocate for Ms. D MANDEEP PAN P PANNU J. -.- 1. The present revision petition has b The has been filed against the order date dated 05.08.2025 passe passed by the learned Civil Judge (Se ge (Senior Division), Charkhi Dadri, adri, in Execution Petitio
Legal Reasoning
Petition arising out of Civil Suit No. t No. 142 of 2016, whereby warrant o rrant of arrest has been iss een issued against the petitioner. Brief Facts:- 2. The plaint/respondent instituted C The ted Civil Suit No. 142 of 2016 fo 016 for recovery of ₹3,64 ₹3,64,640/- allegedly advanced to t d to the petitioner/defendant-judgme dgment debtor. On 20.01 20.01.2020, the learned Civil Judge Judge (Senior Division) Charkhi Dad i Dadri decreed the same same in favour of the respondent, d dent, directing the petitioner to pay th pay the decretal amount ount within two months. The respon respondent filed an execution petitio petition titled as “Mukesh kesh v. Surender” before the learne learned Additional Civil Judge (Senio (Senior Division) Kanina anina. On 01.08.2025, the petitioner itioner filed detailed objections statin stating that the decree a cree amount could be satisfied by d by attachment and sale of requisi equisite TRIPTI SAINI 2025.08.20 16:51 I attest to the accuracy and integrity of this document CR-5421-2025 (O (O&M) -2- property and not not the entire property. He demonst emonstrated willingness to comply wi ply with the decree, but th but the executing court dismissed th ed the objections as “not maintainable ainable” and ordered issua d issuance of a conditional warrant of rant of arrest against the petitioner vid vide impugned order order dated 05.08.2025, without iss ut issuing any show-cause notice otice as required under Se der Section 51 CPC. Submissions On ns On Behalf Of Petitioner 3.
Legal Reasoning
It is argued by learned counsel for t It is el for the petitioner/defendant-judgme ment debtor that Sectio Section 51, CPC, mandates that for a m for a money decree, execution by arre y arrest and detention is p on is permissible only if (i) the judgm a show- judgment-debtor is first given a show cause notice, and and (ii) the court is satisfied, for re for reasons recorded in writing, of an of any of the statutory c y conditions (e.g., likelihood of ab of absconding, dishonest concealme ealment of property, refu y, refusal to pay despite having m ing means, fiduciary liability). Thu Thus, bypassing the sho he show-cause requirement violates na ates natural justice and is impermissib missible even for executio ecution of a money decree. Issue For Determ etermination 4. Whether the executing court was j Whe was justified in issuing a condition ditional warrant of arres arrest without issuing a statutory utory show-cause notice and witho without recording any sati ny satisfaction of the conditions in Sec in Section 51 CPC. Findings 5. TRIPTI SAINI 2025.08.20 16:51 I attest to the accuracy and integrity of this document Section 51 of the Civil Procedure Co Secti ure Code, 1908 is reproduced as under under:- Section 51. Powers of Court to en “Sec o enforce execution:- Subject to suc to such conditions and limitations as may be cond ay be prescribed, the Court may on th y on the application of the decree-holder, orde appli rder execution of the decree— (a) by delivery of any property roperty specifically decreed; or CR-5421-2025 (O (O&M) -3- (b) by attachment and sale, o sale, or by sale without attachment, o ent, of any property; or (c) by arrest and detention ention in prison for such period n iod not exceeding the period specified ecified in Section 58, where arrest an rest and detention is permissible under under that section; or (d) by appointing a receiver; o iver; or (e) in such other manner as the r as the nature of the relief may require equire; Provided that, where the decree Prov ecree is for the payment of mone money, execution by detention in prison sh exec ison shall not be ordered unless, aft ss, after giving the judgment-debtor an oppo givin opportunity of showing cause why h why he should not be committed to prison, t shou rison, the Court, for reasons recorded orded in writing, is satisfied— writi (i) that the judgment-debtor debtor, with the object or effect o ffect of obstructing or delaying the exe the execution of the decree— (1) is likely to abscond o ond or leave the local limits of th of the jurisdiction of the Court; or (2) has, after institution of t n of the suit in which the decree wa ree was passed, dishonestly transferred red, concealed or removed any pa any part of his property, or committe mitted any other act of bad faith faith in relation to his property; or (ii) that the judgment-debtor ebtor has, or has had since the date o date of the decree, the means to pay t pay the amount of the decree or som or some substantial part thereof and ref and refuses or neglects or has refused o fused or e; or neglected to pay the same; or TRIPTI SAINI 2025.08.20 16:51 I attest to the accuracy and integrity of this document CR-5421-2025 (O (O&M) -4- (iii) that the decree is for a su r a sum for which the judgment-debto debtor was bound in a fiduciary capac capacity to account. 6. Thus, a bare perusal of Section 51 C Thus 51 CPC would show that it express xpressly prohibits ordering rdering arrest unless a notice is given s given to the judgment-debtor and th and the court is satisfied o isfied of enumerated grounds. 7. The Executing Court neither iss The er issued any notice nor recorde ecorded satisfaction of sta of statutory grounds justifying issua issuance of warrants of arrest. Petition etitioner expressly offere offered attachment and sale of p of property to satisfy the decre decree, demonstrating no no mala fide or evasive conduct. N uct. Not only this, arrest without givin t giving the petitioner any er any opportunity to be heard is a pr is a procedural fatality and a breach o reach of natural justice. 8. The order dated 05.08.2025 fails to The ils to articulate any written reasons fo sons for bypassing Sectio Section 51 CPC. No showing of an of an emergency or real likelihood o hood of absconding was m was made; none of the statutory preco preconditions existed. 9. This Court in case of Mal Singh This gh and Another Vs. State Bank nk of India [2015(5) R 5) RCR (Civil) 583] and Mohinder der Singh Vs. M/s Amrit Singh Zor Zora Singh Merchants hants & Commission Agents [2019( 019(4) PLR 689] held that Executin xecuting Court is to recor record a positive finding as to the f the fact that there is no possibility o bility of satisfying the dec he decree except by way of arrest. M rest. Merely because it appeared to th d to the Court that there there is no possibility to satisfy t tisfy the decree, is not equivalent o alent of ‘satisfaction’ stat n’ statutorily required under Section ection 51 as also in terms of Rule 3 Rule 37 Order 21, Civil P ivil Procedure Code to be recorded b rded by the Court before proceeding eding to resort to arrest an rest and detention of the JDs. Execu Executing Court is required to issue issue a TRIPTI SAINI 2025.08.20 16:51 I attest to the accuracy and integrity of this document CR-5421-2025 (O (O&M) -5- show cause notic e notice calling upon JD with regard regard to payment of decretal amou amount failing which judg ch judgment debtor was liable to be arr be arrested. 10. In view of the above discussion an In vi and the settled law, the impugne pugned order dated 05.0 05.08.2025 is hereby set aside and and the present revision petition tition is allowed. The con he conditional warrant issued against for non- ainst the petitioner is quashed for non compliance of p of provisions of Section 51 CPC CPC and violation of natural justic justice. Further, the Exec xecuting Court is directed to procee proceed afresh, complying strictly wi tly with CPC. Section 51 CPC. 11. Meanwhile, the petitioner’s offer Mean offer to attach and auction sufficie ufficient property to satisfy dered. satisfy the decree shall be considered. 12. Pending application(s), if any, also st Pend
Decision
also stand disposed off. 2025 August 13, 2025 tripti (MANDEEP PANNU) JUDGE Whether Whether ether speaking/non-speaking : Speakin peaking Yes/No : Yes/N ether reportable TRIPTI SAINI 2025.08.20 16:51 I attest to the accuracy and integrity of this document