The single-judge bench of Justice Alka Sarin of the Punjab and Haryana High Court in the case of Dalbir Singh Vs Sanjay Kumar held that arrest would be a measure of last resort and in the present case, admittedly, some property of the JD-respondent already stands attached and the Executing Court has directed the JD-respondent to file an affidavit stating all the particulars regarding his moveable and immoveable properties.
BRIEF FACTS
The factual matrix of the case is that the award was passed by the lok Adalat in a petition under section 138 of the Negotiable Instrument Act, 1881, where the respondent agreed to repay the loan in two installments of Rs.10,00,000/- each failing which he was liable for conviction as per the statements of the parties recorded. Thereafter, the award was passed and the respondent didn’t pay the loan on time due to which an execution petition was filed by the petitioner. However, in that execution petitioner the salary of the JD-respondent was attached till further orders. Prior to that, the conditional warrants of arrest of the JD-respondent were also issued. Furthermore, the application was filed by the JD in order to release the salary and attachment of the property.
The Executing Court, in accordance with the provisions of Section 60(1)(i) of the Code of Civil Procedure, 1908 (CPC), recalled the order and the employer of the JD-respondent was directed to release the attached salary only to the extent of 2/3rd attached salary and the rest 1/3rd attached salary was to be deposited in the account of the DH-petitioner.
The property of the JD was also attached. The JD-respondent was instructed to provide an affidavit stating all the details of his moveable and immoveable properties in accordance with Order 21 Rule 41(1) and (2) CPC in response to the DH-argument petitioner's that the property attached would not be used to satisfy the award on the grounds that its value had not yet been determined. The DH- petitioner requested to recall the order granting conditional arrest warrants was likewise denied.
The learned counsel appearing on behalf of the petitioner has contended that the order dated 02.02.2019 ought to have been recalled inasmuch as the amount as promised by the JD-respondent had not been paid. The learned counsel further relied upon the judgment titled K.N. Govindan Kutty Menon V s. C.D. Shaji [2012 (2) SCC 51] and the judgments of this Court in the cases of Mahender Kumar Vs. Mangal Singh [2013 (4) RCR (Civil) 342] and Ajit Inder Singh Vs. Kuldip Singh [1994(1) Civil Court Cases 680].
COURT’S OBSERVATION
The hon’ble court held that the salary of the JD-respondent cannot be attached for a period of more than 24 months where such attachment is made in execution of one and the same decree. The amount of 1/3rd of the salary of the JD-respondent for a period of 24 months already stands deposited in the account of the DH-petitioner.
Further, a property measuring 3 kanals 11 marlas belonging to the JD-respondent has already been attached and the JD-respondent has been asked to furnish an affidavit along with all the particulars of his moveable as well as immoveable properties.
The argument of learned counsel for the DH-petitioner that the salary should be continued to be attached cannot be accepted in view of the clear provisions of Section 60(1)(i) of CPC. Further the argument of learned counsel that the JD-respondent ought to be arrested for non-compliance of the order passed by the Permanent Lok Adalat cannot also be accepted in view of the fact that arrest would be a measure of last resort and in the present case, admittedly, some property of the JD-respondent already stands attached and the Executing Court has directed the JD-respondent to file an affidavit stating all the particulars regarding his moveable and immoveable properties.
Furthermore, the property of the JD-respondent already stands attached and the JD-respondent has been directed to file an affidavit stating all the particulars regarding his moveable and immoveable properties. Hence, the impugned order cannot be faulted.
CASE NAME- Dalbir Singh Vs Sanjay Kumar
CITATION- CR-3216-2021 (O&M)
CORUM- Justice Alka Sarin
DATE- 1.11.22
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