Punjab-Haryana High Court
Parminder Singh vs M/S Ghanshyam Dass Sandeep Kumar on 2 July, 2024
Neutral Citation No:=2024:PHHC:081622
CR-810-2024 1 2024:PHHC:081622
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
117 CR-810-2024 (O&M)
Decided on: 02.07.2024
Parminder Singh
...Petitioner
Versus
M/s Ghanshyam Dass Sandeep Kumar
...Respondent
CORAM: HON'BLE MRS JUSTICE RITU TAGORE
Present: Mr. Satish Chaudhary, Advocate
for the petitioner.
****
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
1. 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 Vs. 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').
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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 Vs.
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
Vs. 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
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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:-
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"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 (AnnexureP-
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. The petitioner also seeks to join the proceedings
and undertakes to appear before the learned Executing Court on or before
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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.
(RITU TAGORE)
JUDGE
02.07.2024
Rimpal
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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