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Official Citation: 2026 LHC 4404
Court / Jurisdiction: Lahore High Court (Honorable Mr. Justice Ahmad Nadeem Arshad)
Parties: Naseer Ahmad Nasir vs Ali Sher etc
This judicial decision was delivered by the Lahore High Court (Honorable Mr. Justice Ahmad Nadeem Arshad). The matter involves proceedings between Naseer Ahmad Nasir and Ali Sher etc, officially reported as 2026 LHC 4404. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
COURT: Lahore High Court (Honorable Mr. Justice Ahmad Nadeem Arshad) DECISION DATE: 01-07-2026 TAGLINE: The power to arrest and detain a judgment-debtor in execution of a money decree is an exceptional mode of execution and can be exercised only upon strict compliance with the mandatory safeguards embodied in Section 51 and Order XXI Rule 40, CPC. CASE DETAILS: Misc. Writ 31402/26 ============================================================ Stereo.HCJDA 38. Judgment Sheet IN THE LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT …. Writ Petition No.31402 of 2026.
Naseer Ahmad Nasir.
Versus
Ali Sher, etc.
J U D G M E N T.
Date of hearing: 01.07.2026. Petitioner by: M/s Ghulam Fareed S anotra and Mian Shah Abbas, Advocates. Respondents by: Mian Dilbar Hussain Shakir, Advocate.
AHMAD NADEEM ARSHAD, J. The petitioner by invoking Constitutional Jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, ('The Constitution') has laid a challenge to order dated 13.05.2026 whereby the petitioner-judgment debtor has been sent to prison on account of non-payment of decretal amount. 2. Tersely, the facts forming background of the proceedings i n hand are that respondents No.1 to 3 institu ted a suit against the petitioner and others for recovery of Rs .400,000,000/- as damages for grave negligence. Learned Trial Court, after full -fledged trial, partially decreed the suit to the tune of Rs.28 -crore vide judgment and decree dated 22.09.2023. For the satisfaction of the decree, decree holder s filed an execution petition against the judgment debtors. During execution proceedings, the petitioner -judgment debtor was arrested in execution of non -bailable warrants of arrest and produced before the Executing Court. Upon failure of the petitioner to pay the decretal amount in full or parts and to submit surety bond he was sent to District Jail, Kasur, vide impugned order W.P. No.31402 of 2026. 2 dated 13.05.2026. Feeling aggrieved, t he petitioner has filed instant Constitutional Petition. 3. Learned counsel for the petitioner, inter-alia, contends that impugned order is illegal, without lawful authority and of no legal effect. He submits that the learned Executing Court committed a jurisdictional error in directing the petitioner's detention in civil prison without first complying with the mandatory requirements of Order XXI Rules 40 and Section 51 of the Code of Civil Procedure, 1908 (CPC), and without properly exercising the powers envisaged under Section 151, CPC. According to the learned counsel, the impugned order has been passed in violation of the prescribed procedure governing arrest and detention of a judgment -debtor in execution proceedings and, therefore, is liable to be set aside. 4. Contrarily, learned counsel for the respondents No.1 to 3 has defended the impugned order by arguing that the same has been rightly passed by the learned Executing Court, which do es not call for any interference by this Court. 5. I have heard learned counsel for the parties at length and gone through the record with their able assistance. 6. After hearing learned counsel for the parties and going through the record, it has been observed that through the impugned order the petitioner has been se nt to civil prison on account of his inability to satisfy the money decree. Order XXI Rule 40 of CPC, prescribes the mandatory procedure which an Executing Court is required to follow before ordering the arrest and detention of a judgment-debtor in civil prison in execution of a money decree. The provision embodies the principle that deprivation of personal liberty cannot be ordered mechanically merely becaus e a decree remains unsatisfied, which reads as under:- "40. Proceedings on appearance of judgment -debtor in obedience to notice or after arrest. _ (1) When a judgment - debtor appears before the Court in obedience to a notice issued under rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Co urt shall proceed to hear the decree -holder and take all such evidence as may be produced by him in support of his W.P. No.31402 of 2026. 3 application for execution, and shall then give the judgment - debtor an opportunity of showing cause why he should not be detained in prison. (2) Pending the conclusion of the inquiry under sub -rule (1) the Court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required. (3) Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of section 51 and to the other provisions of this Code, make an order for the detention of the judgment- debtor in prison and shall in that event cause him to be arrested if he is not already under arrest : Provided that in order to give the judgment -debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment -debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied. (4) A judgment -debtor released under this rule may be re-arrested. (5) When the Court does not make an order of detention under sub -rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release.]" High Court Amendment Lahore: (a) For sub-rule (1) the following shall be substituted "(1) where a judgment-debtor avails himself the opportunity provided under rule 37 or is brought before the court after being arrested in execution of the decree for the pay ment of money, the Court shall give the judgment -debtor an opportunity of showing good cause why he s hould not be detained in prison.”; (b) Sub-rule(2) shall be omitted; (c) For sub-rule (3), the following shall be substituted: "(3) Where the judgment -debtor fail s to show any good cause under sub -rule (1), the Court may, subject to the provisions of section 51 and to the other provisions of the Code, make an Order for the detention of the judgment - debtor in prison and shall, in that event, cause him to be arrested if he is not already under arrest." 7. The Rule contemplates a judicial inquiry to determine whether the judgment-debtor is liable to be detained. Such inquiry is not mere a formality or procedural ritual; rather, it is a substantive safeguard intended to protect the personal liberty of the judgment-debtor. W.P. No.31402 of 2026. 4 8. Section 51, CPC, prescribes the various modes for execution of a decree, one of which is the arrest and detention of a judgment - debtor in civil prison, which reads as under:- "51. Powers of Court to enforce execution.– Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree -holder, order execution of the decree__ (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property; (c) by arrest and detention in prison; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require: [Provided that, execution by detention in prison shall not be ordered unless, after giving the judgment -debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied __ (a) that the judgment -debtor, with the object or effect of obstructing or delaying the execution of the decree.– (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the su it in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property ; or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or (c) that the decree is for a sum for which the judgment debtor was bound in a fiduciary capacity to account. Explanation.– In the calculation of the means of the judgment - debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.]" 9. A conjoint reading of Section 51 and Order XXI Rule 40 of CPC, leaves no manner of doubt that compliance with the requirements embodied therein is not a mere procedural formality but a mandatory statutory obliga tion. Section 51 circumscribes the power of the Executing Court to order arrest and detention of a judgment-debtor by prescribing specific jurisdictional preconditions, W.P. No.31402 of 2026. 5 whereas Order XXI Rule 40 lays down the procedure through which the Court is required to arrive at the satisfaction contemplated by the proviso to Section 51. The two provisions are, therefore, complementary and must be read harmoniously. While Section 51 prescribes the substantive conditions for curtailing the liberty of a judgment-debtor, Order XXI Rule 40 provides the procedural mechanism for determining whether those conditions in fact exist. The inquiry envisaged under Rule 40 is thus not an empty ritual or an idle exercise; rather, it constitutes the statutory safeguard against arbitrary deprivation of personal liberty. A Division Bench of this Court in a case titled "Precision Engineering Ltd. and others V. The Grays Leasing Limited" (PLD 2000 Lahore 290) , while elaborating the prerequisites of Section 51 CPC, held as under: "10. Deeper, analysis of the rules referred to hereinabove, makes it obvious that in the first instance, notice has to be given to the judgment debtor to explain as to why he should not be detained in prison. On his appearance the Court has to make an inquiry, record evidence, give opportunity of evidence in rebuttal and thereafter to pass an order on the request for detention in prison, in accordance with law. During these proceedings the judgment-debtor can be asked to furnish security for appearance, which does not mean security for the payment of dectetal amount. Without making any inquiry the Court cannot straightaway order detention in civil prison. Likewise, unless the prerequisites of section 51 of C.P.C. are proved to exist, detention in prison cannot be ordered. The preconditions, as highlighted hereinabove, are that judgment -debtor should be proved to have made attempt to leave the limits of Court, to obstruct the decree or execution thereof or dishonestly transferred the property after the institution of the suit to avoid the decree or had the means to pay the decree and neglected to do the same. Without satisfaction of these preconditions, no mechanical order for detention in prison can be passed."
In a case titled "Raja Munsif Dad V. WAPDA through Chief Engineer, WAPDA, Mangla Dam Project, Mangla, Mirpur" (PLD 1991 Azad J & K 8), the Court observed as under: "There is no denying the fact that the executing Court was empowered to enforce execution of the decree by arrest and detention in prison as prescribe d under section 51, C.P.C. However, when the execution was to be enforced by arrest and detention in civil prison of the judgment -debtor, it was imperative to record reasons in compliance with the provisions of section 51 read with the provisions of Order XXI, Rules 37 and 40 of the Code. Unless the prescribed procedure was followed, any action in the shape of the impugned order was illegal. This view finds support from a Division Bench judgment of Allahabad High Court recorded in AIR 1955 Allahabad 402. Th e observation is:-- W.P. No.31402 of 2026. 6 "Before the Court can issue a warrant of arrest or a notice to the judgment -debtor under O.XXI, R. 37, it has to see that the judgment-debtor is liable to arrest in pursuance of the application for execution. This means that the nature of the decree should be such that it can be executed by the arrest of the judgment -debtor and that such circumstances exist that an order of arrest can be made against the judgment-debtor, in case the Court was satisfied of those circumstances. Such circum stances are what are mentioned in clauses (a) to (c) to of the conditions to govern the liability of the judgment -debtor to arrest. This necessarily leads to the conclusion that the existence of such a circumstance should be alleged whether in the execution application itself or in a separate application or affidavit which should accompany the usual tabular execution application. Unless such a circumstance is alleged the Court cannot think of it, and in the absence of it the Court cannot take action under O.XXI, R.37 or issue notice to the judgment-debtor why he should not be arrested. The procedure to be followed, when the judgment -debtor appears in Court, should be according to what is laid down in R.40 of O.XXI. The judgment -debtor may or may not file any written reply. It is for the decree -holder to lead his evidence in the presence of the judgment - debtor. Such evidence should be in support of his application for execution and should have reference to the grounds which, according to the decree -holder, wou ld justify the arrest of the judgment -debtor, in execution of the decree, and which should be one of the grounds mentioned in clauses (a) to (c) to proviso to Section 51. It is when the decree -holder has led 'prima facie' evidence in support of his applica tion that the judgment-debtor has to be given an opportunity of showing cause why he should not be committed to the civil prison." In an identical case, Mr. Justice Panchapakesa Ayyar, J. observed in AIR 1956 Madras 580 as:-- "A bald order for arrest will violate the mandatory provisions of Section 51 and will affect the liberty of a person and his fundamental rights. The law clearly requires the Court to give the judgment -debtor an opportunity of showing cause why he should not be committed to prison. Even if he does not appear and show cause, the Court should record its reasons in writing for ordering his arrest, and the usual reason in such cases will be that it is satisfied that the judgment -debtor has or has had, since the date of the decree, means to p ay the amount of the decree or some substantial part thereof and has refused or neglected to pay the same. Whenever a Court does not act on the first failure to appear in pursuance of a notice, but issues another notice, it should wait and see whether the person appears in pursuance of the second notice; it cannot act on his absence in pursuance of the first notice. But, whether the judgment-debtor appears or not, the Court has to record the reasons for ordering his arrest. It is not for the judgment-debtor to prove the negative, but for the decree- holder to prove the positive, and for the Court to find favour of the contention of the decree -holder and to record its reasons for ordering arrest." W.P. No.31402 of 2026. 7 Above referred precedents were also followed by the Division Bench of Hon’ble Sindh High Cour t, in a case titled "Ehtisham Ghazi V. Izharuddin and another" (2001 YLR 526). 10. It is a settled principle of statutory interpretation that where the legislature has prescribed that a particular act is to be performed in a particular manner, it must be performed in that manner. Any other mode of compliance is legally impermissible. The statutory procedure is not directory but mandatory where it operates as a condition precedent to the exercise of jurisdiction, particularly where the consequence of non -compliance is deprivation of personal liberty. Therefore, if the Executing Court orders the arrest or detention of a judgment -debtor without first conducting the inquiry mandated by Order XXI Rule 40, without affording the pa rties an opportunity to produce evidence, and without recording its satisfaction in terms of the proviso to Section 51, CPC, the exercise of jurisdiction stands vitiated. The mandatory procedure prescribed by Section 51 read with Order XXI Rule 40 is not a matter of form but of substance, intended to ensure fairness, transparency and due process before the valuable right to personal liberty is curtailed. Consequently, any departure from the statutory procedure renders the exercise without lawful authority a nd the resulting order unsustainable in the eyes of law. 11. It is equally important to bear in mind that the object of arrest and detention of a judgment -debtor in civil prison is not to punish him merely because the decree has remained unsatisfied. Civil imprisonment under Section 51, CPC is neither penal nor retributive in nature; rather, it is an exceptional mode of execution intended to secure compliance with a lawful decree in circumstances specifically recognized by the legislature. The power is exer cisable only where the Executing Court, upon conducting the inquiry mandated by law, records its satisfaction that the judgment -debtor falls within one or more of the contingencies enumerated in the proviso to Section 51, CPC, i.e., that he is likely to ab scond or leave the jurisdiction with the object or effect of obstructing or delaying execution; or that after the institution of the suit he has dishonestly transferred, concealed or removed any part of his property or otherwise acted in bad faith in W.P. No.31402 of 2026. 8 relation thereto; or that he has, or has had since the date of the decree, sufficient means to satisfy the decree or a substantial part thereof but has wilfully refused or neglected to do so; or that the decree is for a sum for which he was bound to account in a fiduciary capacity. Thus, the legislative intent is not to incarcerate a person solely because he has failed to discharge a decretal liability, but to facilitate effective execution where the statutory conditions demonstrating obstruction, bad faith, deliberate evasion or breach of fiduciary obligation are affirmatively established. In the absence of such findings, detention in civil prison would cease to be a lawful mode of execution and would instead assume the character of an impermissible punitive mea sure, which the law does not countenance. A Division Bench of this Court in a case titled "Allah Bakhsh, etc. V. Royal Bank of Scotland" (2017 AC 663), observed as under:- "7. It is self -evidently clear from above reproduced part of impugned order that pro visions of Section 51 of CPC have not been complied with. The s aid provisions of law mandate that warrant of arrest can only be issued on the grounds i.e. (i) the judgment-debtor, with the object of obstructing or delaying the execution of the decree, is l ikely to abscond or leave the local limits of the jurisdiction of the Court, (ii) judgment -debtor has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed a ny other act of bad faith in relation to his property, or (iii) the judgment -debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same."
12. The power to execute a money decree by arrest and detention of a judgment -debtor in civil prison is an exceptional mode of execution, as it directly curtails the personal liberty of an individual. Such power, therefore, can only be exercised in strict conformity with the proviso to Section 51 of CPC, which prescribes specific statutory conditions precedent for the exercise of such jurisdiction. The Executing Court is under a mandatory obligation to conduct an inquiry, afford an oppor tunity of hearing to both the decree -holder and the judgment-debtor, objectively examine the material available on record, and record reasons in writing demonstrating its satisfaction that the case falls within one or more of the contingencies enumerated i n the proviso to Section 51, CPC. In the W.P. No.31402 of 2026. 9 absence of such inquiry and recorded satisfaction, any order directing arrest or detention of the judgment -debtor would be without lawful authority and contrary to the mandate of law. 13. A plain reading of the prov iso to Section 51, CPC, shows that arrest and detention of a judgment-debtor can only be ordered where the Court is satisfied that the case falls within any of the following contingencies: firstly, that the judgment -debtor, with the object or effect of obstructing or delaying the execution of the decree, is likely to abscond or leave the local limits of the jurisdiction of the Court; secondly, that after the institution of the suit in which the decree was passed, the judgment -debtor has dishonestly transfer red, concealed or removed any part of his property or has committed any other act of bad faith in relation to his property; thirdly, that the judgment - debtor has, or has had since the date of the decree, sufficient means to pay the decretal amount or a sub stantial part thereof but has wilfully refused or neglected to satisfy the decree; and fourthly, that the decree is for a sum for which the judgment -debtor was bound in a fiduciary capacity to account. Since the proviso authorizes deprivation of personal l iberty, each of these statutory conditions must be construed strictly and established on the basis of cogent material before an order of detention can lawfully be passed. 14. The Executing Court is, therefore, required to conduct an effective judicial inqu iry with reference to the particular ground invoked by the decree -holder. Where the allegation is that the judgment-debtor is likely to abscond or leave the jurisdiction, the Court must examine the material indicating such intention. Likewise, where dishon est transfer, concealment or removal of property, or any other act of bad faith in relation to the property, is alleged, the Court must scrutinize the evidence supporting such allegation before recording its satisfaction. Mere assertions or apprehensions c annot substitute the judicial satisfaction required by the statute. 15. Equally, where the decree -holder seeks detention on the ground contemplated by clause (b) of the proviso, namely that the judgment-debtor has, or has had since the date of the decree, sufficient means to satisfy the decree but has wilfully refused or neglected to do so, the inquiry assumes particular significance. The W.P. No.31402 of 2026. 10 legislature has deliberately employed the expression "has, or has had since the date of the decree, the means", thereby requiring the Court to ascertain the actual financial capacity of the judgment - debtor during the relevant period. The existence of such means cannot be presumed merely from the status, occupation or social standing of the judgment -debtor, nor from the mer e fact that the decree remains unsatisfied. The burden lies upon the decree -holder to produce credible evidence demonstrating that the judgment-debtor possesses, or has possessed since the passing of the decree, sufficient assets, income, resources or othe r realizable means enabling him to satisfy the decretal liability wholly or at least to a substantial extent. It must further be established that the omission to pay is not the result of financial incapacity but of deliberate and wilful refusal or neglect. 16. The inquiry contemplated by the proviso to Section 51, read with Order XXI Rule 40, CPC, is not an empty formality but a substantive judicial exercise intended to safeguard the personal liberty of the judgment -debtor while ensuring effective enforcem ent of decrees. The Executing Court is required to afford the decree - holder an opportunity to adduce oral and documentary evidence in support of the ground relied upon and, correspondingly, provide the judgment-debtor an effective opportunity to rebut such evidence by producing material regarding his financial condition, liabilities or any other relevant circumstance. Depending upon the nature of the controversy, the Court may examine the parties, summon financial or other relevant records, or adopt any oth er lawful mode necessary to ascertain the existence of the statutory conditions prescribed by the proviso to Section 51, CPC. 17. It is only after such inquiry has been duly conducted, the evidence objectively appreciated, and reasons recorded in writing demonstrating that one or more of the statutory contingencies contemplated by the proviso to Section 51, CPC stand affirmatively established, that the Executing Court may lawfully direct the arrest and detention of the judgment -debtor in civil prison. In t he…
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