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CR No.1431 of 2020 (OM)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CR No.1431 of 2020 (OM)

Date of Decision: 05.03.2020

Rajesh Arora … Petitioner

Versus

Sonia Arora another … Respondents

CORAM: HON’BLE MR. JUSTICE RAJIV NARAIN RAINA

Present: Mr. Aalok Jagga, Advocate,
for the petitioner.

Mr. Naveen Sharma, Advocate,
for the caveator respondents.

RAJIV NARAIN RAINA, J.

1. The challenge in this petition filed under Article 227 of the

Constitution is to the order dated 4.10.2019 (Annex P-7) and the order dated

29.11.2019 (Annex P-14) passed by the Additional Principal Judge, Family

Court, Ludhiana alleging them to be unsustainable and contrary to law in Order

XXI, Rule 37 CPC r/w Section 151 of the CPC. The prayer is for quashing

both the orders issuing warrants of imprisonment in execution proceedings for

recovery of maintenance.

2. During the course of hearing Mr. Aalok Jagga for the petitioner

and Mr. Naveen Sharma for the caveator at length, on reading the impugned

orders and connected orders passed in the execution proceedings [photocopies

of which have been produced by Mr. Jagga and are taken on record with no

objection from opposite side being judicial orders] and upon perusal of the

papers on file, this Court is called upon to critically review; Firstly, the short

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order dated 4.10.2019 and Secondly, the long order dated 29.11.2019, which

both are in my opinion not only patently illegal and improper but are also

perverse in the draconian exercise of power to imprison the petitioner which is

not vested in the Family Court at Ludhiana without following the due

procedure in the facts and circumstances of this case. The orders have resulted

in evil consequences to the petitioner by the imminent threat extended of being

sent to judicial custody/ imprisonment in execution proceedings filed by the

first respondent (presently his ex-wife) and her daughter, from her marriage

with the petitioner, for payment of arrears of maintenance under an order dated

5.4.2016. The impugned orders have led to a grave miscarriage of justice. This

order is passed without expressing any opinion on the merits of the case as to

the right to arrears of maintenance or its quantification as claimed, as it is tied

to pending execution proceedings and, therefore, deserve not to suffer any

comment from this Court in the present revision petition, except to say in a

limited way that the petitioner has placed on record certain documents

depicting that Rs.3 lakhs has already been paid towards maintenance pendente

lite, as ordered by the trial court, which issue will fall to the work of the

execution court on remand, if ordered. Petitioner admits that the amount has

been paid under Section 125 of the Cr.PC, but says that it is to be adjusted

against the maintenance awarded under the collateral provisions of the Hindu

Marriage Act, 1955 (for short the ‘HMA’).

3. A few broad but narrow facts are retold. Two execution

applications bearing No.1625 of 2019 and 1626 of 2019 were filed before the

Additional Principal Judge, Family Court, Ludhiana on 2.8.2019 to implement

an order passed by the court in the then pending divorce petition issued under

Sections 24 and 26 of the HMA in favour of the respondent granting her the

arrears of maintenance [before the marriage was dissolved by a decree of

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divorce granted on 15.11.2019 by the predecessor Additional Family Court at

Ludhiana in a divorce petition filed by the wife] and in execution of the orders

passed in maintenance proceedings under Section 125 Cr.PC. Two execution

applications were filed by the wife claiming different amounts in them. In

execution proceeding case No.1626/2019 taken out by the respondent, the first

zimni order in the case passed on 2.8.2019 reads:

“Present: Sh. Sunil Dutt, Adv for Applicant.
***
Execution has been filed. It be registered. Let

notice of the execution be served upon JD for 04.10.2019.”

4. The case on being adjourned to 4.10.2019, on which day the

following impugned order was passed, which has brought the petitioner to this

Court challenging it as contrary to Order XXI, Rule 37 CPC r/w Section 151

CPC and complaining that the order was issued despite improper service of

summons on the petitioner leading to the drastic measure of warrants of civil

imprisonment disregarding the principles of natural justice and the law. Despite

no notice to petitioner, fresh warrants of imprisonment were issued for

7.2.2020 while in the same breath ordering issuance of process for execution of

fresh warrants of imprisonment, again without effecting service. That

impugned order reads: –

“Present: Sh. Sunil Dutt, Adv for Applicant.
***

Notice issued to respondent reportedly received
back unserved with the report that respondent has left the
supplied address. This is an execution application where the
arrears of maintenance fixed under Section 24 of HMA are
payable. Therefore, Civil imprisonment for one month is
ordered on deposit of one month charges. After deposit of one
month charges by the petitioner, warrants of imprisonment be
issued for accordingly, for 04.11.2019.”

5. Warrants of imprisonment (civil) have been issued against the
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petitioner several times as borne by the record even though the first notice

issued on 2.8.2019 was received back ‘unserved’ with the process serving

agency reporting that the respondent has left the “supplied address”. The two

orders have been reproduced above. On 4.11.2019 fresh warrants of

imprisonment were issued on deposit of civil imprisonment charges as

summons were not received back. The subsequent two orders dated 18.11.2019

and the impugned order dated 29.11.2019 have been dealt with in detail in the

course of the order. Thereafter, two orders dated 2.12.2019 and 4.1.2020 were

passed identical to the ones dated 4.11.2019 when warrants were not received

back served. The case was adjourned to 15.2.2020. On 14.2.2020 the file was

taken up by the Additional Family Court and the following order was passed

recording that counsel for the parties be informed, but respondent (petitioner)

was not even served leave alone engaging counsel, then who was expected to

be informed on his behalf:-

“File taken up today as I would be on leave for 15.02.2020.
Case is adjourned to 27.3.2020 for the purpose already fixed.
Counsel for the parties be informed accordingly.”

6. Aggrieved by the impugned orders, the present petition was filed

on 20.2.2020 and came up for hearing on 5.3.2020 in the presence of the

caveator respondent. They were heard and the petition was allowed with orders

partly dictated in Court and took some time to finalize and release and

uploading on Mozilla. The petitioner has placed sufficient prima facie evidence

on the file to prove the fact of want of service of summons on the correct

correspondence address, those being the report of the Process Server and the

addresses given in various applications, pleadings etc and the cause title

describing the address differently from the one he was attempted to be served

with the summons, so as to make proper service of court notice. Accordingly,

personal service was deflected to the wrong quarters and justice was denied to

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the petitioner by the Additional Family Court.

7. Another striking feature of impropriety committed by the

Additional Family Court in the matter of service on the petitioner is, as pleaded

by Mr. Jagga in the petition, that there is already a civil suit pending in the

Ludhiana Courts between the parties, with the petitioner claiming that property

in the name of the wife was actually purchased by him from his own funds.

The petitioner is the plaintiff in the suit which is being contested by the

respondents. No comment is made in this behalf as the matter is sub judice in

the trial court at Ludhiana. Mr. Jagga says that the moment the petitioner

appeared at the hearing in the civil suit on 18.11.2019 [three days after the

marriage was dissolved] respondent taking advantage of the warrants of

imprisonment already issued by the Additional Family Court, aided by the

petitioner’s presence in the court, got the petitioner arrested by the police with

the warrants in hand ready for service to send the petitioner to civil prison

which is also the Jail. He was produced on the same day by the police [while

the case stood adjourned to 7.2.2020 before the roster Additional Family Court

(name withheld) and was taken up by the Court of Shri Ajaib Singh another

Additional Principal Judge, Family Court, Ludhiana on duty as the former was

not holding court on that day. An order was made on the request of the

respondent ex-wife pressing for arrest by execution of the warrants of

imprisonment [by calling for the file from the office, as the case was not listed

before any of the Family Courts at Ludhiana] and the following order was

passed, which order is, to my mind, an order sound in law and perfectly

justified in the situation it was passed in restoring the path of justice and saving

the day from the virulent attack of the impugned order dated 4.10.2019. That

perfectly good order dated 18.11.2019 by the Court of Shri Ajaib Singh,

Additional Principal Judge, Family Court, Ludhiana, deserves to be paid a

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tribute while subjugating a slight transgression of jurisdiction as the Judge was

on “work duty”, but which departure is not fatal to the validity of the order as it

ultimately does justice according to law defanging the order dated 4.10.2019

and removing its sting, by releasing the petitioner to arrange payment. The

order dated 18.11.2019 is reproduced for ready reference as it has a material

bearing on the conduct of the Judge whose name is withheld: –

“Present: Applicant with Shri Sunil Dutt, Advocate
Respondent Rajesh Arora in person.

***
The application for execution fixed for
07.02.2020 before the court of Shri xxx (name withheld),
Additional, Principal Judge, Family Court, Ludhiana is
put up today before me, because the respondent is
produced before me by the police authority in pursuance
of the warrant of imprisonment issued as per previous
order. The respondent has suffered a separate statement
that he has paid about more than Rs.2,00,000/- to the
applicants and he shall clear the arrear of maintenance in
installments to the applicants and he may kindly be given
some time for the same. The applicant No.2 Mridul has
suffered a separate statement for withdrawal of the
present application for execution on his behalf filed by
his mother against respondent at this stage of the same
because he has received the entire payment of his part of
the order passed in his favour against the respondent.

Therefore, the present application for execution is
dismissed as withdrawn on the part of the applicant No.2
against the respondent. The applicant Nos.1 and 3 could
not show any provision of law under which the
respondent can be sent to undergo civil imprisonment on
default of remaining payments of maintenance granted
under Section 24 and 26 of Hindu Marriage Act and
resulting of which the respondent is ordered to be
released and is given time to the respondent to arrange

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the remaining payment of maintenance for clearing the
arrear of maintenance to the applicants on 23.11.2019
before the said court to proceed as per law.”

8. Since I have dwelt in some detail on the order of the learned

Additional Principal Judge Shri Ajaib Singh in the Family Courts at Ludhiana

and praised the officer for passing a fair and reasonable order and doing the

correct thing in balancing out the competing interests by recording the

statement of the petitioner and being not unmindful of the slight transgression

of jurisdiction therein while performing duty work, but, the power was resorted

to, to save the petitioner from being sent to jail there and then from his Court in

execution of warrants of imprisonment. Had the officer been holding court on

18.11.2019, the petitioner would have been serving civil sentence in jail

without recourse to legal remedy.

9. Nevertheless, the aggressive reaction that order met with the angry

Judge on 29.11.2019 to whom the file returned, whose conduct is under the

lens, is not praiseworthy. He may never have imagined the trouble he could get

into in the High Court in revision proceedings on the reckless orders he passed

relentlessly with his mind inclined towards a chosen end to act in a particular

way to create a fiat accompli by imprisonment before an effective remedy

could be sought by the respondent before him. I cannot help saying that a

Judge must always remain calm, neutral, impartial and dispassionate even in

the midst of provocation. I find no cause for provocation here to be so upset

with the orders of the coordinate bench releasing the petitioner from the

warrants of imprisonment and letting him off, an expression used in the

impugned order. In an order a Court must choose its words guardedly so as not

to reveal any disquiet or bad faith. And to use words in an order which are

appropriate to the decision and to the cause it represents. At all times

displaying the large heartedness to acknowledge his errors with the spirit of

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enquiry and the capacity to learn, by “discarding all mere pride of opinion” and

to be always a gentleman to his colleagues in his remarks in a judicial order or

judgment. He should not play into the hands of a party and cut his feet in a

superior Court while reviewing his order. He must tread his ground carefully

as there are many thorns in the way.

10. None of these virtues can I see in his impugned orders more so the

second one. I am sufficiently moved to pen down my thoughts to say that the

order dated 29.11.2019 is so intemperate in its language, so unworthy of

respect, so full of injustice and so dishearteningly bad, that it deserves to be

placed and read forever on the files of the Court of Record. That is why I have

reproduced it at length, not to humiliate him in public for the pride in the

fraternity of justice delivery and the way it is to be administered is such that

everyone says with approval: “Here stands an upright Judge”. I say so only to

awaken and sensitize him. That is why I have withheld his name in the order,

which reads, with all its flaws of language, grammar, spelling and punctuation

mistakes. He did not proof read the order to sort out errors in use of upper and

lower case and left one sentence incomplete while the first name of the

predecessor learned Additional District Judge-cum-Family Court is misspelled

“Bisham” for Shri Bishan Saroop and yet he signed the order; [and I wish I

could proof read the order if the Judge himself didn’t do so]. The order

surprisingly imputes knowledge on the petitioner of the proceedings but

disregards the factum of service of notice when on his own showing in the

order in execution remaining unsuccessful, and still holds the petitioner to

“ransom” threatening him with jail on pain of not paying the balance amount of

the arrears of maintenance to the applicants. After all he was executing the

decree but not the petitioner, which he was trying to do.

11. It appears to me that for him issuing notice was enough to

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imprison the petitioner by invoking his “inherent powers”, while peppering the

order with three precedents to lend credibility to his order. It is a rudimentary

principle that there exist no inherent powers contrary to the provisions of the

Statute, therefore, the Judge could not have bypassed the mandatory procedure

u/s 51 r/w Order XXI Rule 37 40 by invoking his “inherent powers” to order

civil imprisonment. Even so, Court has never said, nor can say, that service of

summons can ever be presumed duly effected for sending a man to civil

imprisonment and judicial custody except in accordance with the relevant

provisions of Order V read with Order XXI, Rule 37 (2) of the Code of Civil

Procedure, 1908, the High Court Rules Orders and the provisions of the

Family Courts Act, 1984. That order of 29.11.2019 under serious challenge in

this petition reads in verbatim as follows:

“Present: Applicant with Sh. Sunil Dutt, Adv.
None for respondent/JD.
***

Rajesh Arora is not present. The execution application
was filed in this court for issuance of warrants to show cause
why the JD should not be sent to civil imprisonment with
regard to order dated 5.04.2016 by virtue of which the
maintenance u/s 24, 26 of HMA was fixed by the court of Sh.
Bisham Saroop, Addl. District and Sessions Judge, Ludhiana.
The said court was pleased to fix maintenance to the tune of
Rs.3000/- per month to minor children and Rs.8000/- per
month to the wife and in the execution application, it was
requested that civil imprisonment warrants be issued.

On receipt of the same, notice was ordered to be issued
and the house was lying locked and this court had directed to
issue civil imprisonment warrants for one month on deposit of
one month charges. Thereafter, he was produced in the court
of Sh. Ajaib Singh, on dated 18.11.2019 and it was ordered
that the applicants could not show any provision of law under
which the respondent can be sent to undergo civil
imprisonment on default of remaining payment of
maintenance granted u/s 24 and 26 of HMA and the

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respondent was released by giving time to arrange the
remaining amount. Although, the said court was not
competent to pass any order while, holding a duty work but in
his wisdom, he had gone on to decide that my order for
issuance of warrants for civil imprisonment u/o 21 rule 37
CPC was invalid. It was not proper for a parallel court to
pass any order in the file which is only received by the said
court for a duty purpose. If the said court was of the opinion
he was not under obligation to decide the case of this court on
merit. I had already made a reference for transfer of the case
because of propriety demanded that I should not re-decide on
a issue on account of this situation.

This has compelled me to explain the law on the
subject. First of all, from my orders it is clear that show
cause notice was issued and on being satisfied that the
respondent has the knowledge and intentionally not making
the payment this court had ordered issuance of civil
imprisonment.

The Ld. Counsel for DH has contended that the family
court has got inherent jurisdiction to pass any order to
advance justice. However, as far as, the law is concerned, our
on Hon’ble Punjab and Haryana High Court in a case titled as
“Suman vs. Ajit Singh, 2011 (1) HLR 291 (PH)” Civil
Procedure Code, 1908, Order 21 Rule 37 Sub-rule (2),
Rule 40 and Section 51 Proviso – Warrants for arrest –
Jurisdiction – Non-appearance in the Court in response to
the notice to show cause – Court was well within its
jurisdiction to issue warrants for his arrest in pursuance
of sub-rule (2) of rule 37 – Purpose of issuance of
warrants for his arrest – is to secure his presence before
Executing Court so that proceedings consistent with Rule
40 could be taken was pleased to hold that order 21 rule 37
of CPC is applicable. Further, in another pronouncement case
titled as “Baljit Kaur vs. Jasvir Singh, 2011 (1) HLR 508”
Hindu Marriage Act, 1955, Sections 13 and 24. The
Hon’ble High Court has pleased to pass that Husband has
not paid the maintenance pendente lite and litigation
expenses as ordered by High Court more than a year ago

– Wife can file a petition under Order 21 Rule 37 Civil

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Procedure Code for the recovery of this amount –

Husband can also be hauled up under the Contempt of
Courts Act for disobedience of Court’s order – Defence of
husband liable to be stuck off. Further mode under the
family court act 1984, the family court has got the inherent
power and can formulate any procedure to advance justice.
And also u/s 28 A of HMA any order passed under the HMA
is liable to be enforced by exercising the civil jurisdiction and
it is deemed to be decree.

The Hon’ble Punjab and Haryana High Court had
again reiterated that order 21 rule 37 of CPC is applicable. In
case titled as “Ved Prakash vs. Sneh Lata, 1989 (1) PLR
161 (PH) Civil Procedure Code, 1908, Order 21 Rule 37
Sub-rule (2), Rule 40 and Section 51 Proviso – Warrants
for arrest – Jurisdiction – Non-appearance in the Court in
response to the notice to show cause – Court was well
within its jurisdiction to issue warrants for his arrest in
pursuance of sub-rule (2) of rule 37 – Purpose of issuance
of warrants for his arrest – is to secure his presence before
Executing Court so that proceedings consistent with Rule
40 could be taken. Our own Hon’ble Punjab and Haryana
High court had categorically held that non-appearance in
court in response to show cause the court was well within its
jurisdiction to issue warrants for his arrest in pursuance to sub
rule to 2 of Rule 37 of order 21. Therefore, the court of Ajaib
Singh was not justified in saying that there is no provision of
law for execution of any order passed by family court or any
other court under HMA fixing the maintenance. Since, the
respondent is already let of and he is deemed to have full
show cause notice and despite the same has not made any
payment. Therefore, fresh civil imprisonment warrants be
issued for 12.12.2019 on deposit of one month charges. He
be produced before this court, if he fails to make the payment
of the amount mentioned in the warrants of arrest.”

(emphasis by under-scoring supplied. Mistakes in the
order are those of the maker. The bold parts of the three
cases-the catch words – are as per the attested copy, the first
sentence of paragraph 3, I highlighted in bold text)

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12. The fatal flaw of improper service of the execution proceedings on

the petitioner; learned counsel for the respondent as a fact is unable to deny

from the record that notice issued to the petitioner was not at the correct

address of the targeted recipient and was thus misdirected. The Family Court,

thus, fell in grave error by introducing the concept of deemed service of notice

fallaciously reasoning, in the words of the order, that “Since, the respondent is

already let of (sic, ‘off’) and he is deemed to have full show cause notice and

despite the same has not made any payment”.

13. If this is the conceded position, then the present respondent cannot

wriggle out of her misadventure. Mr. Aalok Jagga says the petitioner had

shifted base to Delhi from Ludhiana long ago and the respondent knew of this

fact. She also knew it from the pleadings in the civil suit filed by the petitioner

with his new address in Delhi described in the pleadings and affidavits, but the

execution application papers presented by the wife still contained the address

in Ludhiana, where he could never be served even by a long shot. The address

where the petitioner was earlier staying was ‘11091, Street No.3 4, backside

Sangeet Cinema, Ludhiana’ which property was mortgaged with the Central

Bank of India for obtaining a business loan. The Bank had taken physical

possession of the property on 14.10.2016 and sold it off in a public auction to

recover default money and the sale certificate was issued on 10.8.2017 to the

purchaser. The respondent was fully aware of the said sale because the Bank

alleges that she had given a statement to it to proceed against the asset for

recovery of outstanding amount owed to the Bank. The first respondent knew

the petitioner was not staying at the address, where he was earlier staying, and

therefore, despite being aware of the fresh address together with knowledge

from his regular appearances in the civil court in the pending suit, she did not

bring it to the notice of the Family Court and gave an impression to it as if the

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summons could be served at the defunct Ludhiana address and, therefore, in

failing to appear, he is evading service. The Additional Family Court

swallowed this falsity readily imputing deemed service of the petitioner

without applying his mind to the facts of the case and the law, controlled in the

matter of arrest and detention by the over-arching and fundamental principles

of Article 21 of the Constitution while blindly applying the provisions of

Section 51 and Order XXI, Rule 37 of the Code to bring the petitioner

hurriedly to book.

14. The Family Court has referred to two judgments which have

considered Section 51 of the Code, namely, Suman vs. Ajit and Ved Prakash vs.

Sneh Lata but has failed to consider the difference between warrants of arrest

and warrants of imprisonment. The first is to secure presence and on failure to

pay the money decreed to consider the next step of detention in prison. These

two stages are delineated in the Proviso to Section 51 r/w Order XXI Rule 37

Rule 40 of the Code which guarantees offender being put to show cause

[presupposing party served at the correct address] and hearing him on why he

should not be committed to prison and if he fails to show cause to the

satisfaction of the Court, then court has to record reasons in writing justifying

civil imprisonment that one or more of the four conditions in sub-sections (a)

(i) and (ii) and (b) of the Proviso are shown to exist by the decree-holder. It has

thus become necessary to visit Section 51 and its Proviso along with Rules 37

40 of Order XXI. The provisions are reproduced:

“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 the sale without attachment
of any property;

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(c) by arrest and detention in prison [for such period not
exceeding the period specified in section 58,
where arrest and detention is permissible under that section];

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted
may require :

Provided that, where the decree is for the payment of
money, 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 suit 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.]”
Order XXI Rule 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

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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 object or
effort 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.”

Order XXI, Rule 40
“Proceedings on appearance of the judgment-debtor in
obedience to notice 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 payment of money, the Court shall proceed to hear the
decree-holder and take all such evidence as maybe produced
by him in support of his application for execution, and shall
then give the judgment-debtor an opportunity of showing
cause why he should not be committed to the civil 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 the civil 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

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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.”

15. A bare reading of these provisions makes the procedure for
detaining a defaulting judgment-debtor amply clear:

(i) On the application of decree-holder under Order XXI Rule 37 for
execution of a money decree by the arrest and detention of the
judgment-debtor, the Court “shall” issue a show cause notice
instead of issuing warrant for his arrest. This mandatory provision
ensures the preservation of an individual’s right to liberty,
enshrined in Article 21 of our Constitution, by following the
principle of natural justice; audi alteram partem.
The only exception to issuing a show cause notice before issuing
warrant for arrest is if on an affidavit by the decree-holder or
otherwise, the Court is satisfied that the judgment-debtor is likely
to abscond or leave the Court’s jurisdiction with an object or
effect of delaying the execution. In which case, it is necessary for
the Court to record its reasons, for a non-speaking order is as good
as an arbitrary and draconian action against a person depriving
him of his fundamental right to liberty contrary to the due process
of law.

(ii) Where the judgment-debtor fails to make appearance in obedience
of the show-cause notice, the Court is empowered to issue a
warrant of arrest on the decree-holder’s application under Order
XXI Rule 37(2). However, this power of the Court is limited by
Order XXI Rule 40, which requires the arrested judgment-debtor
to be produced before the Court and for the Court to hear the
decree-holder and take all such evidence which is produced by
him in support of his application. After which the Court is

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mandated to give an opportunity to the judgment-debtor for
showing cause why he should not be committed to civil prison.
Meaning thereby, that the warrants issued under Rule 37(2) are for
arrest to ensure appearance, the judgment-debtor’s detention in
civil prison follows only after the requirements of Rule 40 are
satisfied.

(iii) The inquiry as envisaged in Rule 40(1) is mandatory, pending
which the Court is only authorised as far as to detain the
judgment-debtor in the custody of an officer of the Court or take
security from him for his appearance.

(iv) Sub-rule 3 of Rule 40 subjects the Court’s power of detaining the
judgment-debtor in civil prison to the provisions of Section 51.
Therefore, the Court cannot order detention unless it is satisfied
that any of the three conditions, in the Proviso to Section 51, exist.

16. It is to be borne in mind that the satisfaction of these conditions

does not mandate civil imprisonment, the Court has the discretion to decide

against detention in civil imprisonment and order either; the judgment-debtors

detention in custody of an Officer of the Court for maximum fifteen days, or

release him on furnishing security for appearance on a specified date if the

decree is not sooner satisfied. Thus, it is evident that there exist sufficient

safeguards at each stage against the detention of the judgment-debtor, which

the Court cannot circumvent.

17. I fail to find any of these statutory reasons recorded in the ex-parte

orders dated 4.10.2019 and 29.11.2019 which may justify execution of

warrants of imprisonment without effective show cause and hearing; not only

are these orders pronounced in defiance of the principle of audi alteram

partem, but they also fail to show any mala-fides in the conduct of the

petitioner. On the other hand, Shri Ajaib Singh passed a reasonable order

without compelling himself to explain the law on the subject. This work was

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left to be analysed by the court in question.

18. The interplay of the values in the Constitution and the relevant

provisions of the Code on the question whether under such circumstances

personal freedom of the judgment-debtor can be held to “ransom” [the word

used in the judgment which is referred to next] until payment of the debt,

Justice V.R. Krishna Iyer sitting with Justice R.S. Pathak in the Supreme Court

in the precedent ‘Jolly George Varghese v. The Bank of Cochin’, AIR 1980 SC

470 went back to the judgment he delivered as Judge in the Kerala High Court,

quoting from it the following extract which makes the position clear to the

mind. In that case, on facts, a judgment-debtor was sought to be detained under

Order XXI 21, Rule 37 CPC although he was seventy and had spent away on

his illness the means he once had to pay off the decree. The observations there

made are apposite and may profitably bear reproduction in answer to the

question posed by the Supreme Court for determination: “The question is

whether under such circumstances the personal freedom of the judgment-

debtors can be held in ransom until repayment of the debt, and if s. 51 read

with O 21, R 37, C.P.C. does warrant such a step, whether the provision of law

is constitutional, tested on the touchstone of fair procedure under Art. 21 and in

conformity with the inherent dignity of the human person in the light of Art. 11

of the International Covenant on Civil and Political Rights”. The Court held:

“The last argument which consumed most of the time of the
long arguments of learned counsel for the appellant is that the
International Covenants on Civil and Political Rights are part
of the law of the land and have to be respected by the
Municipal Courts. Article 11, which I have extracted earlier,
grants immunity from imprisonment to indigent but honest
judgment-debtors.

The march of civilization has been a story of progressive
subordination of property rights to personal freedom; and a
by-product of this subordination finds noble expression in the

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declaration that “No one shall be imprisoned merely on the
ground of inability to fulfil a contractual obligation.” This
revolutionary change in the regard for the human person is
spanned by the possible shock that a resuscitated Shylock
would suffer if a modern Daniel were to come to judgment
when the former asks the pound of flesh from Antonio’s
bosom according to the tenor of the bond, by flatly refusing
the mayhem on the debtor, because the inability of an
impecunious obligee shall not imperil his liberty or person
under the new dispensation proclaimed by the Universal
Declaration of Human Rights. Viewed in this progressive
perspective we may examine whether there is any conflict
between s. 51 CPC and Article 11 of the International
Covenants quoted above. As already indicated by me, this
latter provision only interdicts imprisonment if that is sought
solely on the ground of inability to fulfil the obligation.
Section 51 also declares that if the debtor has no means to pay
he cannot be arrested and detained. If he has and still refuses
or neglects to honour his obligation or if he commits acts of
bad faith, he incurs the liability to imprisonment under s. 51 of
the Code, but this does not violate the mandate of Article 21.
However, if he once had the means but now has not or if he
has money now on which there are other pressing claims, it is
violative of the spirit of Article 11 to arrest and confine him in
jail so as to coerce him into payment…”

19. Further in the judgment in Jolly George the Supreme Court

observed on the place of Article 21 in cases of arrest and imprisonment of

debtor under Section 51 and Order XXI, Rule 37 CPC as follows:

“Equally meaningful is the import of Art.21 of the
Constitution in the context of imprisonment for non-payment
of debts. The high value of human dignity and the worth of
the human person enshrined in Art.21, read with Arts. 14 and
19, obligates the State not to incarcerate except under law
which is fair, just and reasonable in its procedural essence.
Maneka Gandhi’s case as developed further in Sunil Batra v.

Delhi Administration, Sita Ram Ors. v. State of U.P. and
Sunil Batra v. Delhi Administration lays down the

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proposition. It is too obvious to need elaboration that to cast a
person in prison because of his poverty and consequent
inability to meet his contractual liability is appalling. To be
poor, in this land of Daridra Narayana, is no crime and to
‘recover’ debts by the procedure of putting one in prison is too
flagrantly violative of Art.21 unless there is proof of the
minimal fairness of his wilful failure to pay in spite of his
sufficient means and absence of more terribly pressing claims
on his means such as medical bills to treat cancer or other
grave illness. Unreasonableness and unfairness in such a
procedure is inferable from Art. 11 of the Covenant. But this
is precisely the interpretation we have put on the Proviso to s.
51 C.P.C. and the lethal blow of Art. 21 cannot strike down
the provision, as now interpreted.”

20. Accordingly, parties have to be put back to the status quo ante

where they stood before the order dated 4.10.2019 was passed with suitable

course correction made by the applicant-respondent in the cause title by

supplying the proper address for purposes of service of summons. Merely

because the petitioner was produced in the Court of Shri Ajaib Singh on

18.11.2019 or has been forced to approach this court in what is an essentially

civil dispute for recovery of arrears of maintenance challenging the illegal

orders dated 4.10.2019 and 29.11.2019 and has thereby disclosed his

whereabouts in those Courts is, in my view, not sufficient to deem service upon

him to save the impugned orders by creating a fiction of service of the

proceedings upon the petitioner. The argument of the respondent to this

purported effect is not tenable and is rejected. Legal fictions cannot be created

extensively to infringe on the liberty of a citizen and then pack him off to

prison based on a presumption of service without following the due process of

the law. By following the procedure as established by law in procedural

safeguards, the courts are the guardians of life and liberty of the people, which

they are bound to honour and obey, before and after issuing processes of the

court. The Family Court acting under the Hindu Marriage Act is not exercising
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the powers of the Magistrate under Section 125 (3) of the Code of Criminal

Procedure, 1973 who can order imprisonment for a month in default of

payment of maintenance determined under that provision on failure of a

warrant of arrest for levying the amount due, which presupposes due service of

the order in the proceeding. Section 125 (3) provides that: “If any person so

ordered fails without sufficient cause to comply with the order, any such

Magistrate may, for every breach of the order; issue a warrant for levying the

amount due in the manner provided for levying fines, and may sentence such

person, for the whole, or any part of each month’s allowance [allowance for the

maintenance or the interim maintenance and expenses of proceeding, as the

case may be,] remaining unpaid after the execution of the warrant, to

imprisonment for a term which may extend to one month or until payment if

sooner made:…” However, the question of putting the defaulter in prison, to be

sent in the proverbial hand-cuffs, does not arise in the present proceedings in

enforcement of arrears of maintenance by the ex-wife. This is not to say that

the presence of the husband cannot be secured by the Family Court to enforce

his attendance by suitable process as deemed fit to answer the prayers in the

two execution applications. But it is unheard of to straightaway issue a warrant

of imprisonment without first enforcing attendance. Family Court must avoid

an identity crisis sitting as Family Court (Civil) and Magistrate (Criminal) and

alternating between the two different jurisdictions from the same dais to

achieve different results. The judge appears to have mixed up the two elements

by a concoction and that too by following an illegal procedure in terrorem with

an inherent defect to start with resulting from non-service of notice upon the

husband.

21. In Taraknath Mukherjee v. Sandhya Mukherjee, 2018 SCC

OnLine Cal 6154, the Calcutta High Court held: “It is unheard of that an order

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passed under Section 24 of the Hindu Marriage Act, 1955 would be executed

by taking resort to the provisions of the Criminal Procedure Code.”

22. In the present petition, the petitioner has rightly prayed that

warrants of imprisonment be recalled forthwith by setting aside the order dated

4.10.2019. There was no occasion to issue them whatsoever without securing

legal attendance and calling for reply. In my considered view, also as in

Taraknath (supra), the petitioner cannot be sent to civil imprisonment in

violation of the due process of the law without giving him a fair opportunity of

hearing on his explanation, if any, that he has to offer and that too after proper

service of the execution application is duly effected on him personally by

adhering to the principles of natural justice and following the steps in Order

XXI, Rule 37 of the Code. This would have guaranteed to him the valuable

right to defend himself and to contest the execution applications, whatever may

be the result on merits finally determined by the court. It would be a travesty of

justice if the impugned order is allowed to stand when it ex facie deserves to be

annulled and the petitioner set at liberty for the time being, not so much from

the action in due execution of the decree but from imprisonment without

justification.

23. This Court expresses its displeasure over the passing of the nasty

order dated 4.10.2019 which is not only patently illegal and perverse but is also

contrary to all the well-accepted canons of justice, fair-play and even-handed

dealing by a court of law. The impugned order dated 29.11.2019 is even more

notorious in its unlawful consequences. The petitioner cannot be taken by

surprise for the fault of the Court. For a judge to pass such a wanton order

ignorant of the rudimentary principles of law; which not only is highly

improper for failing to follow the execution procedure provided u/s 51 r/w

Order XXI Rule 37 Rule 40, but is in violation of the fundamental rights

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implicit in a citizen conferred by Article 21 of the Constitution of India to

tenaciously protect his liberty, is showing abject lack of probity, sensitivity,

humanism, understanding, detachment and maintaining judicial discipline, the

last being the uppermost consideration. Article 21 bats for the protection of life

and personal liberty guaranteeing to the citizen that: No person shall be

deprived of his life or personal liberty except according to procedure

established by law. The order has the effect of tarnishing the image of the

institution of justice, which a Judge is bound not to corrode, in the eyes of the

public and bringing it to disrepute. Its impropriety is writ so large that it will

not be enough to just set it aside, but to also order a course correction of the

Judicial Officer [name withheld] to restore him to the sublime path of

venturing to do justice according to law in the future, so that litigants before

him are not imperilled in their cause. The Judge should have first called upon

the first respondent to supply the correct address of the petitioner instead of

being agitated and upon her doing so, could have issued fresh notice to serve

him. He could have also used the electronic media to notify him of the

proceedings in addition to normal process. That would have been the proper

thing to do. Even the excuses of everyday rush and hurry of court business or

an oversight cannot save such a perverse order whose two material parts cannot

coexist. Meaning thereby; notice not served but still the petitioner must go to

jail. Had he not approached this Court, he would have been called an ex

jailbird.

24. No Judge ought to have passed such a terrifying order, the judicial

impropriety of which disturbs the conscience of this court. It brings the judicial

process to infamy in public and the Bar if it were made extensively viral, which

would shake the confidence of the people in the institution which dispenses

justice as the guardian of law and to which they look upon as their saviour. The

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public reposes blind faith and implicit trust in the courts of law that they will

get from them justice according to law and nothing less, despite all odds and

travails they may face before knocking at its door or being called in.

25. The man was not served and still warrants of imprisonment were

issued twice over [even after the curative order dated 18.11.2019 was passed

by his fellow Judge for good and sufficient cause] as though he were a

common criminal. I can only express my deep anguish and disbelief of the

order, which has come as a shock to me, and that too, passed at the level of the

superior judicial service. God have mercy on the litigants that appear in his

court.

26. At the cost of lecturing we all should remain guided. The crux of

which is that a judge should try and develop an aerial vision of the case and not

be lost in the undergrowth, the fronds and the thickets and should not be

grieved when every dead leaf leaves his judgment to fashion it like a sculptor

or artist. Only the eloquent facts placed before him from a thick mass of

printed papers ought to be selected from a hundred and one which are relevant

to the conclusions. Parties plead many facts that they judge are essential but

that may not be always true. Some facts are not necessary while others can’t be

skipped. This requires skill earned by practice, experience and patience. The

skill lies in pruning the case file with deft secateurs in hand using it carefully to

reveal the bare necessities or the essential core issue/s required for the best

possible decision-making process in the facts and circumstances to mature into

a just and proper judgment and order. This effort will yield far greater fruit the

coming season to weather the litigation storms in appeal. There must be an

honest effort on the dais and if they fail there is nothing to fear or fret about. To

err is forgiven but seldom should the judicial work be arbitrary, whimsical or

dishonest or extraneous to the cause, which should never ever be seen done

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consciously. By this dishonesty I do not mean just pelf, but the purpose and the

objectives required to be achieved in the exploration of justice according to

law. The Judge must know how to read precedents from the point of view to

either follow or distinguish them for reasons discussed. There are no reasons in

the impugned order dated 29.11.2019. Therefore, the facts in each case are

supreme governors. Lord Alfred Thompson Denning, J. wrote in his book, ‘The

Discipline of Law’: “Precedent should be followed only so far as it marks the

path of justice, but you must cut the dead wood and trim off the side branches

else you will find yourself lost in thickets and branches. My plea is to keep the

path of justice clear of obstructions which could impede it.” How to read

judgments is itself a study of sorts and much work goes into it over the years

till the reflex becomes intuitive with the deposit of law in the judicial mind

collected over the years. The superior judiciary has to use this tool every day

and hone the skill which this judicial officer shows lack of.

27. To find the shortest plausible cut to the correct decision is every

judge’s dream. The lawyers in the case have to help find that path. This is what

litigants expect in the clarity of a judgment or order from a court that governs

their rights and binds them. They should not be short-changed and left

unconvinced that what the Court did was not right and justice in a court of law

was not obtained but was denied. A Judge’s mind and heart should be larger

than his distant self and much smaller than his ego. The ego of the Judge in the

Family Court in this case should not have been hurt by what his fellow judge

said in his order of release dated 29.11.2019, putting the case back on proper

track, for him to be judicially chided by the uncharitable remarks he made in

his order commenting on the work of his colleague in words he could have

avoided. Learned fellow-Judge rightly queried the wife’s counsel to show him

the law on whether at the stage he was at, the husband “can be sent to undergo

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civil imprisonment on default of remaining payments of maintenance granted

under section 24 and 26 of the Hindu Marriage Act” and then, on the failure of

the wife’s counsel to answer, judiciously granting time to the husband to

arrange payment. Judge Shri Ajaib Singh had intuitively found his way to the

heart of the judgment of the Supreme Court in Jolly George and arrived

judiciously at the same station. But the present Judge in the Family Court did

not learn his lesson well from that sound indication in the order and to the

contrary has revolted against it and as a result, run into rough weather in this

Court. We must understand that, “There is only one corner of the universe you

can be certain of improving, and that’s your own self” said Aldous Huxley. But

the Family Court asserts in his order pretentiously exclaiming he knows the

law by deriding the order dated 18.11.2019 declaring triumphantly that “…This

has compelled me to explain the law on the subject”. With such a large

statement made by the Family Court in the rank of an Additional District

Judge, one would expect a thesis on the subject. The order dated 29.11.2019 is

no thesis. It is only an artless badly written order with many glitches of the

English language such as that any person on the street could have written in or

out of law school. I have learnt nothing from it on the subject by way of

explanation of the law to improve my knowledge. Fools rush in where angels

fear to tread.

28. We need to revisit and analyze the order dated 29.11.2019 more

carefully, its threadbare reasoning and loud declarations made on law

depending on head notes of three cases made by unknown reporters, without

showing any evidence in his order of having read them to their meaning and

how they apply to the case in hand. The Judge in the Family Court is by his

tone and tenor in the impugned order apparently extremely hassled, feeling

insulted by the order dated 18.11.2019 passed by Judge Shri Ajaib Singh of

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coordinate jurisdiction being one of many Family Courts functioning in

Ludhiana. He actually means to say that the other learned Judge had no

business to pass the order as he was on “duty work” when the petitioner was

produced before him by the police on warrants of imprisonment. What a scene

that must have been in humiliation of the petitioner. This is confirmed by his

remarks in the order to the effect that: “… Although, the said court was not

competent to pass any order while, holding a duty work but in his wisdom, he

had gone on to decide that my order for issuance of warrants for civil

imprisonment u/o 21 rule 37 CPC was invalid”. By this observation he attacks

the order dated 18.11.2019 as being “invalid’ and then compounds it with the

logic promoted to achieve a particular end, to anyhow send the petitioner to jail

for non-payment of partial debt by recording the word “invalid” when nothing

of the kind was said in the order of 18.11.2019 as that word was not employed

therein. Or does he mean that an imputation is made against him and his

wisdom by the wisdom of Judge Shri Ajaib Singh or that the invalidity of the

order logically follows by necessary implication and thus it should be reviewed

when he had no such powers which could only be exercised by a superior

court. Judge Shri Ajaib Singh merely asked the wife’s counsel to show him the

legal position in the law if he could order judicial remand straightaway and

send the respondent, the present petitioner, to serve a sentence of civil

imprisonment. If he had not passed the order, the petitioner would most

certainly have been in jail and would have served out his sentence by now

without determination of his rights in execution when certain amounts had

been paid by him to the wife in court in the parallel proceedings under Section

125, Cr.PC claiming adjustment. There was nothing wrong in this

inquisitiveness and enquiry, which is a good quality in a Judge. We all ask

learned counsel to show us the law often enough. Obviously, the present Judge

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feels he does not need to ask for law from anyone as he knows it by heart or

something to that effect in the impugned orders, and his brother Judge is a

lesser mortal.

29. The author of the impugned order then commits a blunder in his

order by presuming due service of the execution proceedings on the petitioner,

and if that were true, then all other things follow sequitur. He remarks rather

angrily “It was not proper for a parallel Court to pass any order on the file

which is only received by the said Court for a duty purpose.” He accuses the

intermediary Court of being a “parallel court” that should not have passed the

order and free his game as if he was on a hunting trip, because it seems that he

was hell bent to do it again and issues fresh warrants of imprisonment and

bring back his quarry already “let of” [off with single “f”], to face the music of

wrath. For one, the Family Court is not a “Court” in the true sense of the word

but a court of limited jurisdiction closer to a Tribunal than a Court of law. All

Tribunals are not Courts though all Courts are Tribunals. The Family Court is a

creature of statute established under Section 3 of the Family Courts Act, 1984.

It is a quasi-judicial forum which has the trappings of the Court with functions

resembling and akin to it but not quite the same, holding which office, this

court is merged with both civil and criminal powers from restitution of

conjugal rights, judicial separation, pendente lite maintenance, permanent

maintenance, alimony, divorce etc etc in civil law and coercive authority for

enforcing maintenance under Section 125 Cr.PC with criminal sanctions to

back it. This power is derived by virtue of Section 7 of Chapter III of The

Family Courts Act, 1984 which provides that this forum shall exercise all the

jurisdiction exercisable by any district court and in this pursuit be deemed, for

the purposes of exercising such jurisdiction under such law, to be a district

court. The Supreme Court in S.D. Joshi vs. High Court of Judicature at

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Bombay, (2011) 1 SCC 252 brought out the stark reality of the status of the

Family Courts and their jurisprudential character in the context of elevation of

judicial officers to the Bench of the Bombay High Court from amongst

aspirants manning Family Courts, the Court holding in conclusion that:-

“For the reasons afore-recorded, we have no hesitation in
holding that the Principal and other Judges of the Family
Court may be `Judges’ presiding over such courts in its
‘generic sense’ but strict sensu are neither Members/integral
part of the `Judicial Services’ of the State of Maharashtra as
defined under Article 236 nor do they hold a `judicial office’
as contemplated under Article 217 of the Constitution of
India. Thus, they do not have any jus legitimum to be
considered for elevation to the High Court.”

30. The “Procedure generally” prescribed for this special court which

is nothing but a Tribunal is contained in Section 10 of the 1984 Act which

notifies the adjective law as follows:-

“10. Procedure generally.–(1) Subject to the other
provisions of this Act and the rules, the provisions of the Code
of Civil Procedure, 1908 (5 of 1908) and of any other law for
the time being in force shall apply to the suits and proceedings
[other than the proceedings under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974)] before a Family Court
and for the purposes of the said provisions of the Code, a
Family Court shall be deemed to be a civil court and shall
have all the powers of such court.

(2) Subject to the other provisions of this Act and the rules,
the provisions of the Code of Criminal Procedure, 1973 (2 of
1974) or the rules made thereunder, shall apply to the
proceedings under Chapter IX of that Code before a Family
Court.

(3) Nothing in sub-section (1) or sub-section (2) shall prevent
a Family Court from laying down its own procedure with a
view to arrive at a settlement in respect of the subject-matter
of the suit or proceedings or at the truth of the facts alleged by
the one party and denied by the other.”

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31. There is an interpretational gap and visible difference between the

expressions that there is nothing preventing the Family Court “from laying

down its own procedure” in Section 10 of the 1984 Act as an exception to the

Code of Civil procedure, 1908 and the process of adjudication, by analogy,

exercised by the Labour Courts, Tribunals and National Tribunals established

under Section 7, 7A 7B of the Industrial Disputes Act, 1947 respectively,

which are also special tribunals with the trappings of the courts. Section 11

provides for the “Procedure and Power of Conciliation officers, Boards, Courts

and Tribunals:” prescribing in the Section that they “shall follow such

procedure as the arbitrator or other authority concerned may think fit”.

Accordingly, the Family Court cannot follow such procedure that it thinks fit to

do whimsically whatever it likes. The Judge, who passed the impugned order,

did not in the beginning, lay down its own procedure to exclude the Code

under Section 10 (1) of the 1984 Act which brings them to drink from the

waterhole of the Act, under which they function. Without understanding this

fine distinction in law, the Family Court emphatically observed in his blanket

order that it “has got the inherent power and can formulate any procedure to

advance justice.” In this statement he was not advancing justice but subverting

it. To support this submission, he drew strength from Baljit Kaur v. Jasvir

Singh, one of the three judgments he cited without dealing with the facts of the

case and then applying them to the stage of the case in hand so that the

appellate or revising court can assess the reasoning. He failed to cull out the

ratio, which work he thought unfit to do except to cut, copy and paste their

head notes in bold text as seen in the order, a sin considered cardinal in this

Court, to refer to Head Notes of reported judgments made by reporters without

citing from the reasoning within and to see what was indeed held to be binding.

He then emphatically declared in his order that: “Therefore, the Court of Ajaib

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Singh was not justified in saying that there is no provision of law for execution

of any order passed by family court or any other Court under HMA fixing the

maintenance.” Shri Ajaib Singh in his order of 18.10.2019 never said anything

of that sort. Putting words in the mouth of Judge Shri Ajaib Singh’s are of no

consequence and the order cannot be interpreted to mean something other than

what exists therein. He refers to his brother Judge as “Ajaib Singh”. If he was

taught judicial etiquette he would have said politely; “the Court of Shri Ajaib

Singh” or “Mr. Ajaib Singh” for which he may consider apologizing to his

colleague at the lunch table. He appears to be so irked and annoyed with Shri

Ajaib Singh’s order that he made an application to the learned District Judge,

Ludhiana to transfer the case from him writing in his judicial order that; “I had

already made a reference for transfer of the case because of propriety

demanded that I should not re-decide on a issue on account of this situation.”

He wrote an order on 23.11.2019 addressed to the Principal Family Court,

Ludhiana which shows how troubled his mind then and on 29.11.2019. The

relevant order, in which the request for transfer was made, dated 23.11.2019 is

reproduced here:

“Present: Applicant Sonia Arora with Shri Sunil Dutt,
Advocate
Execution application of applicant No.2
dismissed as withdrawn vide order dated
18.11.2019.

***
I have seen the order dated 18.11.2019 passed
by the court of Shri Ajaib Singh, learned Duty/Addl. Principal
Judge, Family Court, Ludhiana. In this case, the execution
application was pending before the undersigned and this court
had ordered for issuance of warrants on deposit of Civil
Imprisonment charges as the matter pertains to execution of
order passed in a civil case. Request for conditional warrants
was declined. After the deposit of civil imprisonment charges,
show cause notice was issued and the respondent was
produced before the learned Duty Judge, who in his own
wisdom, not only varied the order passed by this Court, but
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had given a clear finding as per his own wisdom. Therefore,
it would be more appropriate that the matter should be
disposed off by the same Court or by the learned Principal
District Judge, Family Court, Ludhiana. Under the
circumstances, I do not deem it appropriate to hear the matter
further. As such, the present file is sent to learned Principal
District Judge, Family Court, Ludhiana for 25.11.2019. The
parties are directed to appear before the learned Court of
Principal District Judge, Family Court, Ludhiana at 10.00 am
on 25.11.2019. Ahlmad of this Court is directed to send the
file to the concerned Court, immediately.” (emphasis added)

32. His request was declined by the learned Principal Judge, Family

Court, Ludhiana. The relevant order of the Principal Judge dated 25.11.2019

reads:

“Present: Applicant with Shri Sunil Dutt, Advocate.

Respondent Rajesh Arora in person.

***
Reference perused, which has been made in the
light of the order passed by the court of Shri Ajaib Singh,
learned Additional Principal Judge (Family Court), Ludhiana
on 18.11.2019, when Shri R.K.Sharma, learned Additional
Principal Judge (Family Court), was on leave. Without
expressing anything on the propriety and legality of the order
dated 18.11.2019, the undersigned is of the considered view
that the matter should be decided by the same court, where it
was originally pending. Therefore, the request for transfer of
the case is declined and the case is referred back to the court
of Shri R.K.Sharma, learned Additional Principal Judge
(Family Court), Ludhiana, for disposal in accordance with
law. The parties shall appear before the court of Shri
R.K.Sharma, Additional Principal Judge (Family Court),
Ludhiana on 29.11.2019. Ahlmad is directed to send the file,
complete in all respects, to the court concerned, well before
the date fixed.”

33. If propriety demanded, according to him not to re-decide on an

issue which led to the release of the warrants of imprisonment without law in

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support, he breached that propriety by reviewing that order suo motu holding

resolutely: “Therefore, the Court of Ajaib Singh was not justified in saying that

there is no provision of law for execution of any order passed by family court

or any other Court under HMA fixing the maintenance. Since, the respondent is

already let of and he is deemed to have full show cause notice and despite the

same has not made any payment. Therefore, fresh civil imprisonment warrants

be issued for 12.12.2019” He should have quoted the provisions of law under

which he was acting in the order for this Court to appreciate the order. None of

the three judgments even remotely apply. In none of them warrants of

imprisonment were involved. Two of them dealt with striking off defence for

avoiding filing written statement. Moreover, judgments are not provisions of

law, they reveal the law. In this manner, he concludes that because the

petitioner was let off by Shri Ajaib Singh and appeared before him on

production by the police on warrants, therefore, he is deemed to have notice of

the execution and can be sent to prison even when he was not served at his

address known to the wife.

34. The Judge then makes, at about the end of paragraph 2 of the

impugned order, a rather tall, daunting and pompous statement that the order of

his coordinate Family Court has “compelled” him “to explain the law on the

subject”. Explain the law on the subject? How can a person explain the law

when he does not show any signs of understanding or respecting the law to

review the order dated 18.11.2019 and order warrants of civil imprisonment

without an application before him or an order of a superior court setting it

aside. Or should I issue notice to him to personally appear in my court to

explain his order and ask him a few inconvenient questions on law. That would

be preposterous which I cannot even venture to think. Writing an essay in a

school competition or a paper in a law school examination is not writing a

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judgment or a judicial order which is open to challenge. Explaining the law on

the subject with the help of three judgments without mentioning case facts and

what was ruled therein to be binding law and what those three judgments have

actually held by matching them to the facts of this case, is looking in the

impugned order dated 29.11.2019 for three needles in a haystack. He cites just

the catch words of those three judgments presumably made by hired reporters

of the law journal reproducing them complete with hyphens and telegraphic

words in his order in bold text without any discussion. Those three cases are

titled “Suman vs. Ajit’, “Baljit Kaur vs. Jasvir Singh” and “Ved Prakash vs.

Sneh Lata, which are apparently distinguishable on law and facts. In fact one

can cite any number of judgements of this Court relevant to the issue at hand

which support the view taken by me. Here are some of them, namely, Tehal

Singh vs. Shivji Ram, 1985 (2) PLR 564 and Col. Ajaib Singh vs. PNB,

1991(1) PLR 231. In Tehal Singh, this Court observed:

“7. It is plain from a reading of the above provisions that
an executing Court can order the execution of a decree by
arrest and detention in prison of the judgment-debtor if it is
satisfied (i) that the judgment-debtor, with the object of
delaying the execution of the decree, is likely to abscond or
leave the local limits of the jurisdiction of the Court; or (ii)
has, after the institution of the suit in which the decree was
passed, dishonestly, transferred or concealed any part of his
property or committed any other act of bad faith in relation to
that, or (iii) that the judgment-debtor has had since the date of
the decree the means to pay the amount of the decree or
substantial part thereof and refuses or neglects or has refused
or neglected to pay the same. Unless and until any of these
conditions is satisfied, the executing Court cannot order the
detention of the judgment-debtor even if he fails to satisfy the
decree. In the present case, the learned executing Court has
only mentioned that the judgment-debtor had been trying to
delay and defeat the execution proceedings. He had filed
frivolous objections and had also got filed such objections

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from his relations. He has not given a finding that judgment-
debtor had been guilty of any acts of omission and
commission enumerated above. From the tenor of the
impugned order, it will be seen that the decree-holder has not
pleaded any of the grounds mentioned in (a), (b) or (c) of
proviso to Section 51, enumerated above. This is a condition
precedent for invoking jurisdiction under Order 21 Rule 37
and 40, Civil Procedure Code. The order of detention of the
petitioner to civil prison for 75 days is thus unsustainable in
law. The learned executing Court acted with material
irregularity in exercise of its jurisdiction. The order is,
therefore, liable to be quashed. I order accordingly.”

34A. In Col. Ajaib Singh, a case of recovery, this Court held:

“The warrant of arrest is liable to be quashed, in the
considered view of this court, on the short ground that the
petitioner has not been heard before ordering his arrest. It has
been laid down in Order 21, Rule 37 of the Code of Civil
Procedure that notice should be issued before ordering the
detention of the judgment debtor in civil prison until and
unless a finding is recorded to the effect that the judgment-
debtor, with intent to delay and obstruct the execution of the
decree, is likely to abscond from the local limits of the
jurisdiction of the court. No such finding has been recorded.
In view thereof, the warrant of arrest could not have been
issued by the executing court.”

35. Similarly, in Didar Singh vs. SBI, 2013 (1) PLR 859 this Court

held:

“Application Annexure P/1 was moved on 8.10.2010
and impugned order was passed on the same day without
issuing notice of the application to the JD and without
granting him opportunity of hearing. Section 51 CPC provides
that where the decree is for the payment of money, 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 to
be recorded in writing, is satisfied as to the conditions

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mentioned in the aforesaid provision. Thus, it was mandatory
for the executing court to have given show cause notice to the
JD against his proposed detention in prison. However,
executing court passed the impugned order without giving
any such opportunity to the JD. The impugned order is thus
completely perverse and illegal and suffers from jurisdictional
error.

In addition to the aforesaid, even Order 21 Rule 37
CPC stipulates that the court shall instead of issuing a warrant
for arrest of judgment debtor issue a notice calling upon him
to appear before the court and to show cause why he should
not be committed to the civil prison. Thus, both under section
51 as well as under Order 21 Rule 27 CPC, it was mandatory
for the executing court to have required the JD to show cause
against his proposed detention but no such opportunity to
show cause was given to the JD. No notice of the application
Annexure P/1 was issued to him.”

36. But I can risk observing even without reading those three

judgments relied on by the Court below in its order dated 29.11.2019, that none

of them could ever say, as no Court would, that without due service of notice

and show cause, no man can be proceeded against and sent to civil jail

straightaway for recovery of debt. The duty to explain those cases has fallen on

this Court to understand the casual approach in relying on them.

37. In Ved Prakash, the petitioner came to court against warrants of

arrest of the judgment debtor in execution for production in court so that on

that date he pays the decretal amount in alimony along with interest to show

cause why he should not be committed to civil prison. JD argued that none of

the conditions in Section 51 of the Code is satisfied nor any such satisfaction

has been recorded by the executing court. This court observed in paragraph 4

as follows:

“4. I have considered the rival contentions of the learned
counsel for the parties. It is evident that the warrants for arrest

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of the petitioner have been issued through the impugned order
on his non-appearance in the Court in response to the notice
to show cause served on him, which was evidently issued
under Order 21 Rule 37 of the Civil Procedure Code. So,
when he did not appear in the Court in obedience to the said
notice, the Court was well within its jurisdiction to issue
warrants for his arrest in pursuance of sub-rule (2) of Rule 37
ibid, the purpose of issuance of warrants for his arrest to
secure his presence before the Executing Court so that
proceedings consistent with Rule 40 ibid could be taken. It is
in the course of such subsequent proceedings that the Court
has to record its satisfaction as regards requirement contained
in proviso to Section 51 of the Civil Procedure Code…”

38. I cannot see my way to apply this case to the present one. It is in

the subsequent stage of the proceedings after warrants of arrest have been

issued that the Court has to record its satisfaction as regards requirements in

proviso to Section 51. The Family Court has breached this law and misapplied

it to the stage he was at. And he was expounding the law but did not record the

elementary satisfaction. Apart from the fact the summons at either of the stages

were not served on the petitioner even assuming he had crossed the stage of

warrants of arrest, which he had not in his tearing hurry.

39. In Suman [2011] the Court was dealing with a case under HMA in

appeal against an order allowing the husband’s divorce petition. In appeal the

wife filed an application for pendente lite maintenance and to strike off the

defence of the respondent for non-payment of arrears and consequently to set

aside the divorce decree. The Family Court skipped the Head Note ‘A’ and fell

on ‘B’ reproduced in his order dated 29.11.2019 to concentrate on an

observation of the Court that a husband can be hauled up for contempt of court

for disobedience of the order of the High Court on maintenance without

applying his mind to the judgment or caring to read it. Husband had not paid

maintenance for years and his defence was struck off resulting in success of the

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appeal and setting aside of the decree. The facts of the case have no connection

with the facts of this case even by remote degree.

40. In Baljit Kaur [2011] the Court again considered a similar

situation as in Suman on striking off defence in a matrimonial matter in

execution of decretal amount of maintenance which had not been paid to the

wife. The judgment has nothing to do with the power of arrest and detention or

any other provision of the Code of Civil Procedure including Order XXI, Rule

37, Sections 51 or 40 and thus the ruling is clearly distinguishable on law and

facts which are not even remotely connected with this case except that a wife

claimed maintenance under a decree. The Additional Family Court cobbled

together these three judgments taken out of the hat and based his order not on

them, in his wisdom, but drawn from the cut copy paste of Head Notes of those

judgments reported in law journals, unlike the “wisdom” of Shri Ajaib Singh,

the learned Additional Principal Judge, Family Court; by failing to use his

mental faculties clouded by a magnificent obsession of sending the petitioner

to civil imprisonment to keep him at bay, as though that were a solution to the

money issue before him in execution. In this he threw the law to the winds

while “explaining” it in his order. And ironically, it was the order of Shri Ajaib

Singh, learned Additional Principal Judge, Family Court, Ludhiana that had

compelled him to explain the law on the subject, a rather tall claim, when he

has not even demonstrated in the order even the rudimentary knowledge of

what he was doing with the law by turning it upside down. He passed orders

behind the back of the petitioner and that is the worst thing a Judge can do.

42. In the circumstances I am left with, however much I would like

not to believe, with a distinct feeling of dismay which has crept in my thinking

of the worst scenario, and that is; was he mixed up with the applicant with his

mind set in the beginning to send the petitioner to prison on considerations

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other than law. The impugned orders are its tell-tale signs.

43. The question is how to read judgments for the law and principle/s

laid down therein in the context of key facts and relevant circumstances of a

case decided and how they are treated by the Judge and what it means to apply

its ratio decidendi [the reason for the legal decision] as a precedent in another

case, while distinguishing its obiter dictum and non-essential facts recorded in

the narration of facts upon which the ratio may not be based. The head-note

made by a reporter in a law journal of reported cases indicates only the broad

outlines of the case or the type it falls in and is the last thing to rely on in a

judgment or order. Determining the true ratio of a case is not as simple as

identifying the reason for the decision in a complex case. There are cases

without ratio but with conclusions. A conclusion does not constitute precedent.

The Additional Principal Judge, Family Court, Ludhiana fell in grave error in

blindly relying on the head-notes. The case law on the subject in hand was not

a complex one presenting difficulty in understanding. The field was covered by

statutory provisions which are well accepted which the court below failed to

read and apply. If he had, he would not have passed the impugned orders. The

principles of reading judgments have been elucidated in several dicta, the most

oft-quoted of which is, per Lord Halsbury in Quinn vs. Leathem, 1901 AC 495,

which was applied by the Constitution Bench in State of Orissa Vs. Sudhansu

Sekhar Misra others, AIR 1968 SC 647, quoting a passage from Leathem,

which reads as follows:

“Now before discussing the case of Allen vs. Flood, (1898)
AC 1 and what was decided therein, there are two
observations of a general character which I wish to make, and
one is to repeat what I have very often said before, that every
judgment must be read as applicable to the particular facts
proved, or assumed to be proved, since the generality of the
expressions, which may be found there are not intended to be

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expositions of the whole law, but governed or qualified by the
particular facts of the case in which such expressions are to be
found. The other is that a case is only an authority for what it
actually decides. I entirely deny that it can be quoted for a
proposition that may seem to follow logically from it. Such a
mode of reasoning assumes that the law is necessarily a
logical Code, whereas every lawyer must acknowledge that
the law is not always logical at all.”

44. In Herrington vs. British Railways Board, [1972 (2) WLR 537]

Lord Morris spoke on the issue of how judgments are to be read:

“There is always peril in treating the words of a speech or
judgment as though they are words in a legislative enactment,
and it is to be remembered that judicial utterances are made in
the setting of the facts of a particular case. Circumstantial
flexibility, one additional or different fact may make a world
of difference between conclusions in two cases. Disposal of
cases by blindly placing reliance on a decision is not proper.”

45. The following words of Lord Denning in the matter of applying

precedents have become locus classicus. The extract is as follows:

“Each case depends on its own facts and a close similarity
between one case and another is not enough because even a
single significant detail may alter the entire aspect, in
deciding such cases, one should avoid the temptation to
decide cases (as said by Cardozo, J.) by matching the colour
of one case against the colour of another. To decide therefore,
on which side of the line a case falls, the broad resemblance
to another case is not at all decisive.”

46. Closer home, our Supreme Court explained the position in

application of precedents to future cases in a bench of three Judges in Union of

India vs. Dhanwanti Devi others, (1996) 6 SCC 44, K. Ramaswamy, J.

observing:

“A decision is only an authority for what it actually decides.

What is of the essence in decision is its ratio and not every
observation found therein not what logically follows from the
various observations made in the judgment. Every judgment
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must be read as applicable to the particular facts proved, since
the generality of the expressions which may be found there is
not intended to be exposition of the whole law, but governed
and qualified by the particular facts of the case in which such
expressions are to be found. It would, therefore, be not
profitable to extract a sentence here and there from the
judgment and to build upon it because the essence of the
decision is its ratio and not every observation found therein.
The enunciation of the reason or principle on which a question
before a court has been decided is alone binding between the
parties to it, but it, is the abstract ratio decidendi, ascertained
on a consideration of the judgment in relation to the subject
matter of the decision, which alone has the force of law and
which, when it is clear what it was, is binding. It is only the
principle laid down in the judgment that is binding law under
Article 141 of the Constitution. A deliberate judicial decision
arrived at after hearing an argument on a question which
arises in the case or is put in issue may constitute a precedent,
no matter for what reason, and the precedent by long
recognition may mature into rule of stare decisis. It is the rule
deductible from the application of law to the facts and
circumstances of the case which constitutes its ratio decidendi.

Therefore, in order to understand and appreciate the
binding force of a decision is always necessary to see what
were the facts in the case in which the decision was given and
what was the point which had to be decided. No judgment can
be read as if it is a statute. A word or a clause or a sentence in
the judgment cannot be regarded as a full exposition of law.
Law cannot afford to be static and therefore, Judges are to
employ an intelligent in the use of precedents.”

47. In the oft-quoted passage in Haryana Financial Corporation vs.

Jagdamba Oil Mills, (2002) 3 SCC 496 on the point of guidance to courts that

the tendency of placing blind reliance on judgments should not be the judicial

reflex, as they have to be applied carefully to the fact situation from case to

case since only the ratio binds and one different material point or relevant fact

can alter the entire aspect. The Supreme Court observing thus:

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“Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed.
Observations of Courts are not to be read as Euclid’s theorems
nor as provisions of the statute. These observations must be
read in the context in which they appear. Judgments of courts
are not to be construed as statutes. To interpret words, phrases
and provisions of a statute, it may become necessary for
judges to embark into lengthy discussions but the discussion
is meant to explain and not to define. Judges interpret statutes,
they do not interpret judgments. They interpret words of
statutes; their words are not to be interpreted as statutes.”

48. As a result of the afore-stated reasons coming from the discussion

that has followed, the petition is accepted. The caveat is discharged. The

impugned orders dated 4.10.2019 and 29.11.2019 with their copies at Annex P-

7 P-14 are quashed. The case is remanded. Fresh service is ordered to be

done by the Family Court on the petitioner at the correct address by following

the due process of the law. I do not propose to bind the parties to a date of

appearance fixed by this Court, as then, the fatal flaw would continue to run its

length on the judicial record of the executing Court, which is presently being

erased from the file of the Court below. After appearance, the petitioner will

have a right to contest the proceedings without fear. The rights of the

respondents shall stand preserved and open to be pressed in their applications.

This order has nothing to do with the successor Family Court to whom the

matter will be put up, who shall remain uninfluenced by anything said in this

order for him to start with a clean slate and an open mind and do whatever that

law dictates.

49. The learned District Judge, Ludhiana shall transfer the matter to

another learned Family Court in Ludhiana [other than the two noticed in this

order to save the other one from any inter-personal embarrassment] as also to

maintain the present judge’s personal wish in his order dated 23.11.2019

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seeking transfer of case, in order to maintain neutrality in decision-making in

the Family Court well versed with the law taking fair and proper steps by the

transferee court in the execution proceeding, after issuing fresh process to the

petitioner at the correct address to be supplied by the present contesting

respondents. It is made clear that whatever is found due according to decree

must be paid in accordance with law.

50. The Learned Registrar General of this Court shall get examined

the conduct of the Judicial Officer, who passed the impugned orders, on the

administrative side as is deemed fit and proper and to take measures including

withdrawal of matrimonial work from him, including never to be posted again

in a Family Court as he appears to lack the judicial temperament and the

desired approach. Or other such steps may be taken as are found desirable.

51. Note: If the officer requests a personal hearing from me through

proper channel, I would have no hesitation in doing so, as I have not heard him

before passing the order and relied only on his work as is apparent on the face

of the record presented before me, to which the caveator raised no objection as

to its authenticity. If he has any plausible written explanation to offer, such that

I could not foresee or the remarks are unjustified, he can always be directed for

a chamber or in camera court room hearing till I hold office. I assure him of a

patient, unprejudiced and unbiased hearing for a fair decision on his

explanation, if worthy of acceptance.

(RAJIV NARAIN RAINA)
JUDGE
05.03.2020
Vimal

Whether speaking/reasoned: Yes

Whether reportable: Yes

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