As per provisions reproduced above, the learned executing Court was at the most empowered to detain the judgment debtor or the person who was resisting or obstructing in the execution process and that too after such fact having been proved as a result of inquiry. The executing Court in the instant case instead of holding any inquiry only relied upon the report of the bailiff and passed the impugned order which is not sustainable in any manner. The Court even did not record statement of the bailiff in order to verify the report submitted by him and passed the impugned order on the basis thereof.
It is also to be noted that the warrant of possession was executed and the resistance was not continuing. However, as per law in case of resistance the executing Court was to direct the applicant (decree holder) to be put into possession of the property and if there was still resistance or obstruction, the Court was to proceed further and that too at the instance of the applicant, but in the instant case the impugned action has been taken without appreciating the law on the subject at the instance of bailiff of the Court.
Another alarming fact proved beyond any shadow of doubt is that while issuing warrant for possession the SHO concerned was also directed to provide police aid to the bailiff so that execution thereof can be executed without there being any unpleasant incident. However, while passing the impugned order the learned executing Court did not even bother to summon the SHO concerned or call for his report in order to satisfy itself about the correctness or otherwise of the report of bailiff and passed the order impugned herein, which is not sustainable in the eye of law.
It is a settled principle that a Judge has to be very cautious and should examine the report of the bailiff and scrutinize the same deeply and not cursorily before passing any order but in the instant case no steps have been taken in order to determine the correctness or otherwise of the report relied upon before passing the impugned order. The Court even did not call upon the bailiff to submit affidavit to verify the correctness of his report and passed the impugned order.
Writ Petition-Criminal Proceedings-Registration of Case.
5777-22
KOUSAR BIBI NIAZI VS THE LEARNED CIVIL JUDGE ETC
Mr. Justice Safdar Saleem Shahid
01-11-2022
2022 LHC 8611
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