Whether chamber summons is maintainable for seeking particulars of assets of Judgment debtor?

 In my opinion, application under Order XXI, Rule 41 is not an
application in an execution. It is an application in aid of
execution or a step towards the execution. Under Clause (j) of
Rule 11(2) of Order XXI of the Code of Civil Procedure, the
execution petition must specify the mode in which assistance
of the Court is required for the execution of a decree. Clause
(j) reads as follows :

(j) the mode in which the assistance of the Court is required
whether -
(i) by the delivery of any property specifically decreed.
(ii) by the attachment, or by the attachment and sale, or by the
sale without attachment, of any property.
(iii) by the arrest and retention in prison of any person;
(iv) by the appointment of a receiver;
(v) otherwise, as the nature of the relief granted may require.
Examination of a judgment debtor under Sub-rule (1) of Rule
41 of Order XXI or direction to the judgment debtor to file an
affidavit to be issued under Sub-rule (2) of Rule 41 or Order
XXI is not one of the mode of execution of a decree provided in
Clause (j) of Rule 11(2) of Order XXI, Rule 30 . Disclosure of
the assets is a preliminary step towards the execution of a
decree. Rule Nos. 3 to 9 of Order XXI of the Code of Civil
Procedure contemplate transfer of a decree by the Court
which passed the decree to another Court for execution. The
decree holder, who is not aware of the assets of the judgment
debtor, is often unable to decide in which Court he should file
the execution petition or in which Court he should get the
decree transferred unless he knows the particulars of the
assets of the judgment debtor. Rule 41 of Order XXI enables
the decree holder to get from the judgment debtor the
information of the assets, which is within the special
knowledge of the judgment debtor. Therefore, an application
under Order XXI, Rule 41 is not an application for execution
of the decree but, merely an aid to the decree holder to enable
him to execute the decree by obtaining information which is
within the special knowledge of the judgment debtor. If this be
so, the application under Order XXI, Rule 41 would ordinary
precede the filing of an execution petition, though it can also
be filed in the pending execution petition itself.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 1098 OF 2017
IN
SUIT NO. 12 OF 2014

Bhupesh Sevantilal Shah vs M/s Bhoomi Tractors Sales & Services


CORAM : B.P.COLABAWALLA, J.
JANUARY 14, 2019.

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Whether the court can permit Decree holder to cross examine judgment debtor as to his properties in execution of decree?

In my view, merely because     affidavit in rejoinder is not filed by the 
Judgment Creditor  to the affidavits  filed by the Judgment Debtor, this court 

cannot come to the conclusion   that what is stated in the affidavit filed in 
response   to   the   order   passed   by   this   court,       under   Order   21   Rule   41,   is 
deemed to have been proved and no further enquiry about the correctness 
thereof would be necessary.  Punjab & Haryana High Court in the case of M/s. 
Baru Ram Banarsi Dass (supra) has considered similar situation and has held 
that the   purpose of order 21 rule 41 of the Code of Civil Procedure is to 
ascertain property if any owned by the Judgment Debtor so that the same may 
be   sold for recovery of the decretal amount.   It is held that   no prejudice 
would be caused to the Judgment Debtor  if he is cross examined  provided he 
has nothing to   conceal from the court and if the Judgment debtor actually 
does not have any property, he should   have nothing to fear from his cross 
examination.   Punjab & Haryana High Court has   held that the examination 
within   the   purview   of   Order   21   Rule   41   of   the   Code   of   Civil   Procedure, 
includes cross examination because  the  purpose is to ascertain whether the Judgment   Debtor       has   any   property     so   that   the   money   decree   can   be 
satisfied.  It is held that      if cross examination is not permitted the Judgment 
Debtor may   falsely state   that he does not own   any property and   if the 
Judgment Debtor is cross examined, there would be nothing illegal therein.  I 
am in agreement with the  views expressed by the Punjab and Haryana High 
Court. In my view,  the principle laid down by the   Punjab & Haryana High 

Court in  the case of  M/s. Baru Ram Banarsi Dass (supra) are applicable to 
extended to   this case.

  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 1170 OF 2009
IN
EXECUTION APPLICATION (L) NO. 463 OF 2009
IN

AWARD NO. 8 OF 2004

M/s. LA'Builde Associates  Vs Bipinchandra Narandas Dalal 

CORAM : R.D. DHANUKA, J.

PRONOUNCED ON : 6TH SEPTEMBER,  2013
Citation;2013(6)ABR406, 2013(6)ALLMR497

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