Arresting a husband to enforce a family decree is a last resort with strict safeguards

Judgment at a glance

Legal issue

Can an executing court arrest a judgment debtor under a family decree and detain him for a year without first giving a show-cause notice, trying other modes of execution, and finding wilful default under section 51 CPC?

Decision

No. Under Order XXI rule 37 the court must give the judgment debtor an opportunity to show cause before issuing an arrest warrant, and under the proviso to section 51 it may order detention only on reasons recorded in writing showing, for example, that he has the means to pay and refuses, with the burden on the decree holder. Mere non-payment is not enough, and arrest is a last resort after attachment and sale. Here a non-bailable warrant issued straight after service by affixation, no assets were looked for and no inquiry was held, so the arrest, the one-year detention and the revisional order were declared illegal and set aside.

Key principle

In executing a money decree, arrest and detention of the judgment debtor is a measure of last resort: the court must first issue a show-cause notice (O.XXI r.37), try other modes such as attachment and sale, and record written reasons of the kind required by the proviso to section 51 CPC; provisions curtailing liberty are construed strictly.

Outcome

Allowed

Relevant law

Code of Civil Procedure 1908, s.51; Code of Civil Procedure 1908, O.XXI r.37; Constitution of Pakistan 1973, Art. 199

Why it matters

• Decree holders: try attachment of salary, accounts and property first, and bring evidence that the debtor can pay and refuses before seeking arrest.
• Judgment debtors: an arrest or detention order made without a show-cause notice and written findings can be set aside.

Cite as: Pervaiz Ahmed v. Additional District Judge & others, 2026 LHC 7983, Lahore High Court, W.P. No. 2729 of 2017, decided 23 October 2026

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