Please Log in / Register to access the full text of this judgment and the entire database
(2026) Law Today Live Doc. Id. 21126 = 2026:PHHC:086018
Decided on: 29.05.2026
Present:
Mr. Pramod Bhardwaj, Advocate and Mr. Sarun Hans, Advocate for the petitioner.
Mr. Gaurav Goel, Advocate, Mr. Teginder Singh, Advocate and Mr. Rahul Aryan, Advocate for respondent/Bank.
***
Execution proceedings -- Conditional warrants of arrest -- Where decree provides recovery by sale of mortgaged property, arrest of judgment-debtor cannot be resorted to without first proceeding against mortgaged property.
***
Code of Civil Procedure, 1908 (5 of 1908), Section 51, Order 21 Rule 37 -- Execution of decree -- Arrest of judgment-debtor -- Decree directing recovery of amount through sale of mortgaged property first -- Execution Court is required to proceed against mortgaged property before resorting to coercive arrest of judgment-debtor -- Conditional warrants of arrest held unsustainable.
(Paras 4 to 6)
***
YASHVIR SINGH RATHOR, J. (ORAL) –
1. The present revision petition under Articles 226 and 227 of Constitution of India has been filed f or setting aside the impugned order dated 30.04.2025 (Annexure P-1) passed by the Court of Additional Civil Judge (Senior Division), Hisar, whereby conditional warrants of arrest have been issued against the petitioner.
2. Upon notice, Mr. Gaurav Goel, Advocate has appeared on behalf of the respondent/Bank.
3. I have heard learned counsel for the parties and have gone through the material on record.
4. A perusal of the record shows that the suit qua recovery of Rs.18,57,808/- filed by the plaintiff-bank has been decreed along with pendente lite and future interest @ 12% per annum with half yearly rests from the date of filing of suit till realization. Defendants/JDs have been directed to pay the decretal amount within a period of three months, failing which the plaintiff-Bank shall be at liberty to sell mortgaged property. It has been further ordered that in case the mortgaged land is not sufficient to realize the decretal amount and interest, thereafter, the plaintiff-bank shall be at liberty to recover the balance amount from other movable and immovable properties of defendants as per law.
5. In the execution petition filed by the Bank/decree-holder, the conditional arrest warrant of defendant No.1/JD No.1 have been issued and this order has been assailed. The record further shows that JD No.1 appeared before the Executing Court and sought adjournments for making payment but payment has not been made and thereafter, the conditional warrants of arrest have been issued against him. However, once there is a direction in the decree that the decretal amount shall be recovered by way of sale of mortgaged property, the Court cannot resort to arrest of the JD without first of all recovering the amount from the mortgaged property and in these circumstances, the impugned order is not sustainable and is accordingly set aside.
6. Resultantly, the petition in hand is disposed of and learned Executing Court is directed to recover the decretal amount first of all from the mortgaged property and thereafter, the Court may resort to other means for recovery of the decretal amount.
7. Pending miscellaneous application(s), if any, shall also stand disposed of.
Order accordingly.
********