Himachal Pradesh High Court
Dev Kumar Saini vs State Bank Of Patiala & Ors on 22 November, 2023
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
FAO No. 152 of 2022
Decided on 22nd November, 2023
.
Dev Kumar Saini ...Appellant
Versus
State Bank of Patiala & Ors. ...Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge
of
1
Whether approved for reporting? Yes
For the petitioner: Mr. G.R. Palsra, Advocate.
rt
For the respondents: Mr. Arvind Sharma, Advocate, for
respondent No.1.
Ajay Mohan Goel, Judge (Oral)
By way of this appeal, the appellant has challenged
order dated 22.07.2022, passed by the Court of learned District
Mandi, H.P., in Review Petition No.01 of 2020, titled as State
Bank of Patiala vs. Dev Kumar & Ors., in terms whereof, the
order passed by the said Court on 24.09.2020, in an appeal
filed by the present appellant under Section 104(1)(h) against
an order passed by the learned executing Court ordering the
arrest of the petitioner was recalled and reviewed.
2. Brief facts necessary for the adjudication of the
appeal are that respondent/decree holder had filed a suit for
recovery against the petitioner/judgment debtor, which was
.
decreed for an amount of Rs.8,81,000/- alongwith interest. For
the execution of the said decree, the decree holder preferred
an Execution Petition. In the course of adjudication of this
Execution Petition learned Executing Court on 30.09.2019,
of
issued warrant of arrest against the judgment debtor. Feeling
aggrieved, the judgment debtor preferred an appeal under
rt
Order 43 Rule 1 of the Civil Procedure Code, which was
allowed by the learned Appellate Court in terms of order dated
24.09.2020. A review was sought of the order so passed by the
Appellate Authority by the decree holder vide Review Petition
No.01 of 2020, which review has been allowed in terms of the
impugned order.
3. Having heard learned counsel for the parties and
having gone through the impugned order as well as the record
of the case, this Court does not finds any infirmity in the order
passed by the learned Appellate Court dated 22.07.2022, in
terms whereof, the earlier order passed by it on 24.09.2020
was reviewed.
4. In fact the judgment debtor could not have filed an
appeal under the provisions of Section 104(1)(h) of the Civil
.
Procedure Code against the order of detention/issuance of
warrant of arrest by the learned Executing Court in the light of
the plain language of Section 104(i)(h) of the Civil Procedure
Code, which reads as under:-
of
"104. Orders from which appeal lies.-(1) An
appeal shall lie from the following orders, and
save as otherwise expressly provided in the body
rt
of this Code or by any law for the time being in
force, from no other orders.
........
(h) An order under any of the provisions of
this Code imposing a fine or directing the arrest
or detention in the civil prison of any person
except where such arrest or detention is in the
execution of a decree."
5. This aspect of the matter was completely ignored
by the learned Appellate Court at the first instance, while
entertaining and adjudicating the appeal filed by the petitioner
against the order passed by the Executing Court of issuance of
warrant of arrest. This error apparent committed by the
Appellate Court at the first instance vide order dated
24.09.2020 has been corrected by it in terms of order dated
22.07.2020 passed in the Review Petition. In fact, a perusal of
this order demonstrates that the learned Appellate Court after
taking cognizance of the language of the statutory provision,
.
i.e., Section 104(1)(h) of CPC as also the judgment of this
Court in Gurmukh Singh vs. Canara Bank 2019 Law Suit (HP)
1273 held and rightly so that the order of arrest or detention in
the execution of a decree was not appealable under Section
of
104 of Civil Procedure Code.
6. Therefore, as this Court does not finds any
rt
perversity or illegality with the order impugned, the appeal
being devoid of any merit is dismissed. Pending miscellaneous
applications, if any, stand disposed of.
(Ajay Mohan Goel)
Judge
November 22, 2023
(Vinod)
