JUDGMENT
Sat Pal, J.
(1) In this case the decree holder along with the executionpetition, had filed an application bearing E.A. No-70/94 under Order 20 Rule 6-A of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) and in this application it was stated that the decree had not yet been prepared and as such the last paragraph of the judgment be treated as decree for the purpose of execution under Order 20 Rule 6-A of the Code. This application was allowed on 18/03/1994 after hearing the learned Counsel for the parties and it was held that the last paragraph of the judgment dated 15/10/1993 in Suit No.1389/89 would be deemed to be a decree for the purpose of the execution petition. The decree holder was further directed to file the decree sheet as soon as the same was obtained form the Registry. After hearing the learned Counsel for the parties on the main execution petition, it was directed that warrants of attachment in respect of bank accounts and assets in the name of the judgment debtor mentioned in the list of assets along with the petition be issued for 5/05/1994. A notice of the petition was also directed to be issued to the judgment debtor through Counsel with regard to the relief claimed by the decree holder for detention of the judgment debtor in the civil prison.
(2) The case was got listed by the Registry before Court on 24/03/1994for direction to the decree holder to furnish the particulars of the bank accounts and immovable properties. On the said date the learned Counsel for the decreeholder submitted that the judgment debtor was having an account as nonresident external account with the Indian Bank, E-30, South Extension Part-11, New Delhi in his name. Learned Counsel for the decree holder, however, expressed her unability to give particulars of the other two accounts. The Registry was directed to take steps accordingly.
(3) Meanwhile, the decree holder moved another application under Section 6 of the Bankers Books Evidence Act, 1891 read with Section 151 of the Code and in this application it was prayed that a direction be issued to the Indian Bank, E-30,South Extension Part-11, New Delhi and the Indian Overseas Bank, Golf Links,New Delhi to produce the copies of the entries in the bank records pertaining to the accounts/fixed deposit receipts of the judgment debtor for the period May1989 till date. This application came up for hearing on 2/05/1994 and after hearing the learned Counsel for the decree holder, a notice was directed to be issued to the above mentioned banks to produce the copies of the entries in the bank records pertaining to the accounts/fixed deposit receipts of the judgment debtors for the period May 1989 till date and the case was adjourned to 1 6/05/1994.
(4) 0N 5/05/1994 the case came up for hearing and learned Counsel for The decree holder was directed to supply a complete set of paper book to the learned Counsel for the judgment debtor and the case was adjourned to 16/05/1994.On 16/05/1994 the case was adjourned to 18/05/1994 and it was directed that the file of Suit No. 1383/89 be also placed before Court on the next date.
(5) On 18/05/1994 learned Counsel for the judgment debtor raised certain preliminary objections regarding maintainability of the execution petition which are being dealt with herein after and arguments were heard on l8th and l9th May,
(6) Mr. Lekhi, the learned Senior Counsel appearing on behalf of the judgmentdebtor submitted that the decree holder got the orders on 18/03/1994 in EA70/94 by misrepresentation of the facts. He further submitted that the learned Counsel for the decree holder deliberately did not bring to the notice of the Court an objection raised by the Registry on 6/03/1994 as well as on 16/03/1994 that decree had not been drawn for want of Court fee required to be deposited by the decree holder. He also submitted that the affidavit filed along with EA70/94 was false inasmuch as in the said application it was not stated that the decree had not been prepared as the additional Court fee had not been deposited by The decree holder. He further submitted that under Order 20 Rule 6-A of the Code,last para of the judgment could be deemed to be decree for the purposes of execution only if the full Court fee had been deposited by the decree holder. He,therefore, contended that since the decree holder had not deposited the additional Court fee till 18/03/1994, the execution petition was not maintainable on thatdate.
(7) The learned Counsel further drew my attention to Section 5 of the Bankers Books Evidence Act, 1891 and submitted that in terms of the aforesaid provisions,no special cause was made on behalf of the decree holder to issue a notice to the Indian Bank, South Extension Part-11, New Delhi and Indian Overseas Bank, GolfLink, New Delhi to produce copies of the entries in the bank records pertaining to the account/fixed deposit receipts of the judgment debtor. In support of his contention the learned Counsel placed reliance on a judgment reported in the case of Lakhta, (1992) Vol.2 Llr 269. The learned Counsel, however, submitted that earlier orders passed on 18/03/1994 be not recalled.
(8) Mr. Bhatia, the learned Senior Counsel, appearing on behalf of the decreeholder submitted that the decree holder had already paid the full Court fee with regard to the relief granted by this Court except the relief regarding the difference between the rate of exchange prevailing on the date of filing of the suit and rate of exchange prevailing on the date of decree. He further submitted that in reply to letter dated 1 1/01/1994 issued by the Registry, the decree holder had submitted the requisite information regarding the rate of exchange vide their letter dated 19/02/1994. He further submitted that thereafter the clerk of the Counsel of the decree holder had been approaching the Registry regularly and when the decree holder was informed about the exact amount of the additional Court fee payable by the decree holder, the same was immediately deposited on 26/03/1994. The learned Counsel also submitted that in terms of Order 20Rule 6-A of the Code, the decree holder was not required to give any reason as to why the decree has not yet been drawn up. The only condition is that in case The decree has not yet been drawn up, the last para of the judgment shall be deemed to be decree for the purposes of execution. He, therefore, contended that since the additional Court fee had already been deposited on 26/03/1994, the objection raised by the learned Counsel for the decree holder did not survive.
(9) The learned Counsel for the decree holder also drew my attention to Section 6 of the Bankers Books Evidence Act, 1891 and submitted that in terms of this Section, this Court had directed to issue a notice to Indian Bank, South Extension Part-11, New Delhi and Indian Overseas Bank, Golf Link, New Delhi on 2nd May, 1994 to produce the copies of the entries in the bank records pertaining to accounts/fixed deposit receipts of the judgment debtor. The learned Counsel, therefore, contended that there was no merit in the contention urged by the learned Counsel for the judgment debtor that the decree holder had not been able to make special cause for the said direction. The learned Counsel also contended that the judgment debtor be directed to appear in person in the Court in terms of Order Xxi Rule 30 of the Code.
(10) I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and have also .perused the record. Admittedly on 18/03/1994 when the orders in Ea 70/94 and in the execution petition werepassed, the decree sheet had not been drawn up. Further the last para of the judgment dated 15/10/1993 passed in the suit consists of two parts. In the first part the suit for recovery of Rs.1,51,50,000.00 (equivalent of Us Dollars1,000,000.00) plus interest of Rs.58,75,620.00 was decreed with costs in favor of the plaintiff/decree holder and against the defendant/judgment debtor .and the plaintiff/decree holder was also held to be entitled to pendente lite and future interest at the rate of 18 per cent per annum on the said amount. In the second part of this para the claim of the plaintiff for additional sum representing difference between the rate of exchange prevailing on the date of filing of the suit and the rate of exchange prevailing on the date of decree was also decreed. Admittedly, the court fee for the first part of the said para had already been paid by the plaintiff/decree- holder and the additional Court fee for the second part of the last para of the judgment was yet to be paid when the orders on 18/03/1994 werepassed. From the record I also find that the requisite information for the purpose of ascertaining the additional Court fee which was called for by the Registry from the decree holder vide letter dated 11/01/1994 was duly furnished by The decree holder vide letter dated 19/02/1994 and though the said information had already been furnished by the decree holder, the amount of the additional Court fee had not been communicated to the decree holder when EA70/94 was filed on behalf of the decree holder. From this it is evident that even if the learned Counsel for the decree holder had brought to my notice the objection raised by the Registry on 6/03/1994 and 16/03/1994regarding deposit of additional Court fee, the first part of the last para of the judgment was to be deemed to be decree for the purposes of execution as the decree sheet was not drawn up by that time. It will be relevant to point out here that after the decree holder came to know the exact amount of the additional Court fee to bedeposited, the same was deposited by the decree holder on 26/03/1994. In view of these facts I do not find any infirmity in the orders passed on 18/03/1994 in Ea 70/94 and in Execution Petition 58/94.
(11) As regards the objection raised by the learned Counsel for the judgmentdebtor that no special cause was made out on behalf of the decree holder in terms of Section 5 of the Bankers Books Evidence Act, 1891,1 do not find any merit in thiscontention. In the present case the decree holder has filed an application under Section 6 of the Bankers Books Evidence Act, 1891 read with Section 151 of the Code and accordingly the orders were passed on 2/05/1994 in terms of Section 6 of the Bankers Books Evidence Act, 1891 and not under Section 5 of the said Act. Accordingly, I direct the learned Counsel appearing on behalf of the Indian Bank, South Extension Part-11, New Delhi to produce copies of the entries in the said bank record pertaining to the accounts/fixed deposit receipts of the judgment debtor for the period May 1989 till date before the next date of hearing.I further direct that a fresh notice returnable on 7/07/1994 be issued to the Indian Overseas Bank, Golf Link, New Delhi to produce copies of the entries in the bank record of the account/fixed deposit receipts of the judgment debtor for the period May 1989 till date.
(12) I also direct that a notice of the Execution petition be also issued to the judgment debtor through Counsel for 7/07/1994 with regard to the relief claimed by the decree holder for the detention of the judgment debtor in the civil prison.
