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.
Print Page
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.
