IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27298 of 2009(O)
1. STATE BANK OF INDIA,
... Petitioner
Vs
1. MR. M.K.RAVEENDRAN, S/O. M.A.KOCHAKKAN,
... Respondent
For Petitioner :SRI.GEORGE THOMAS (MEVADA)
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :30/10/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No.27298 of 2009
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Dated: 30th October, 2009
JUDGMENT
The Writ Petition is filed seeking mainly the following reliefs:
1. To call for the records leading to Exts.P4 and P5 and set aside the
same.
2. To declare that the respondent is liable to disclose his assets in the
execution petition filed against him in a petition filed under Order 21
Rule 41(2) and face the examination.
2. Petitioner is the decree holder. The decree executed in the
suit is for money, and the respondent is the judgment debtor. In the
execution proceedings initiated by the decree holder for realisation of
the decree debt personal execution against the judgment debtor by
his arrest and detention was applied for. The decree holder also
moved for an order directing the judgment debtor to make an
affidavit stating the particulars of his assets, and also of his oral
examination to collect details of his property or means for satisfying
the decree. The learned Munsiff declined the request of the decree
holder to issue order against the judgment debtor under Order 21
Rule 41 of Code of Civil Procedure holding that such enquiry can be
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proceeded only where the execution petition is filed for attachment
and sale. Propriety and correctness of those orders is challenged in
the writ petition invoking the supervisory jurisdiction vested with this
court under Article 227 of the Constitution of India.
3. Notice was ordered to the respondent. Though served,
respondent/judgment debtor has not entered appearance. The
impugned orders challenged in the writ petition passed by the learned
Munsiff holding that proceedings for oral examination of the judgment
debtor and also for directing the judgment debtor to file an affidavit
regarding his assets can be proceeded only where the execution
petition is filed for attachment and sale are not correct.
4. Rule 41 of Order 21 C.P.C. is captioned as ‘attachment of
property’. That does not postulate it is applicable only when the
execution relate to attachment of property. The object of the section
is to enable the decree holder to get the necessary information with
respect to the properties of the judgment debtor so that he can
realise his debt without difficulty and trouble. It is an effective
provision to obtain discovery in aid of the execution of the decree
which is obtained. The Bombay High Court in United Phosphorous
Ltd. v. A.K.Kanoria (AIR 2003 Bombay 97) has considered the
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scope and ambit of Rule 41 of Order 21 of the C.P.C. It has been held
that examination of a judgment debtor under sub-rule (1) of Rule 41
of Order 21 or direction to the judgment debtor under sub-rule (2) to
file affidavit, is not one of the modes of execution of a decree
provided in clause (j) of Rule 11(2) of Order 21 of the C.P.C. What is
contemplated by Rule 41 of Order 21 C.P.C. is disclosure of the
assets of the judgment debtor as a preliminary step towards the
execution of the decree. In the above decision, the Bombay High
Court has also expressed the view that an application under Rule 41
of Order 21 C.P.C. by the decree holder can be filed even before
presentation of the execution petition. A decree holder who is not
aware of the assets of the judgment debtor is often not able to decide
in which court he should file the execution petition, to which court he
should get the decree transferred. He can resort to Rule 41 of Order
21 to get the details from the judgment debtor the information of his
assets, which is within his special knowledge and that can be sought
for even before proceeding with the execution by filing an execution
petition is the view taken by the above High Court. Opinion expressed
by the Bombay High Court that the court which passed the decree
does not cease to have jurisdiction to entertain application under
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Order 21 Rule 41 C.P.C. at least till the decree is transmitted to
another court for execution appears to be sound considering the
scope and ambit of Rule 41 of Order 21 of the Code of Civil
Procedure. Since the provision covered by the rule is intended only to
aid the execution and not one of the modes of the execution, it is just
and reasonable to hold that even on the trial side in proceedings
under Order 38 of the C.P.C. resort to Rule 41 of Order 21 of the
Code can be sought for to get details of the assets from the
defendant to secure the decree likely to be passed in the suit subject
to the satisfaction of the other conditions for getting an order of
interim attachment before judgment. To restrict the scope of Rule 41
of Order 21 of the Code only in a case of attachment of property, but,
not to cases wherein enquiry on a plea of no means is raised by the
judgment debtor to resist the execution, solely for the reason that the
above rule is dealt with the provisions relating to attachment of
property under the Code will not be conducive to justice. Only
safeguard before passing of an order under sub-rule (1) and (2)
under Order 41 of Rule 21 of the Code over and above the
satisfaction of the court in passing of such orders, whether it be on
the trial side or execution, is that it must be done only after notice to
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the judgment debtor. Disclosure of the assets of the judgment
debtor is a preliminary step towards the execution of the decree and
in very many cases the information of assets is within the special
knowledge of the judgment debtor. An executing court is bound to
facilitate the execution of the decree passed by a court and as Rule
41 of Order 21 of the C.P.C. is only an aid in execution, its scope and
applicability cannot be confined to cases where attachment of
property is sought as mode of execution, but, in cases of personal
execution of the judgment debtor by arrest and detention as well.
Setting aside the impugned orders challenged in the writ petition, the
court below is directed to pass appropriate orders taking note of the
observations made above, and in accordance with law.
Writ petition is disposed as above.
srd S.S. SATHEESACHANDRAN, JUDGE