Bombay High Court
L. And T. Finance Limited vs T. Jagadishwara Rao And Anr. on 5 April, 2004
Equivalent citations: (2004) 106 BOMLR 483
Author: A V Mohta
Bench: A V Mohta
JUDGMENT
Anoop V. Mohta, J.
1. Heard Ms. Shakuntala Joshi for the plaintiffs.
2. This chamber summons has been taken out by the plaintiffs against the defendants. The basic prayer which Is insisted during this hearing is based on Order 21, Rule 41(3) of the Civil Procedure Code.
The earlier orders which were passed in this chamber summons are relevant for the relief as prayed. By order dated 3rd June, 2003, the Chamber Judge has passed the following order :
After hearing the learned Counsel for the applicant/claimant and on going through the affidavit, in my opinion, it would be appropriate to grant prayer (d) at this stage. The defendants are, accordingly, directed to file an affidavit stating the particulars of his properties as provided under Order 21, Rule 41 of the C.P.C. within three weeks from today.
3. By order dated 15th July, 2003, it was specifically observed, that the defendant was unable to take effective steps inspite of the order of this Court dated 3rd July, 2003. Therefore, show cause notice to the defendant Nos. 1 and 2 were made returnable after 4 weeks. By order dated 1st September, 2003, Hamdast was also allowed to the show cause notice.
4. On 25th November, 2003, this Court after considering the order passed on 15th July, 2003, allowed the substitute service upon the defendants, by publishing the notices in newspapers. By order dated 9th February, 2004 the order of substitute service was modified and allowed the plaintiffs to publish the show cause notice in other newspapers. The plaintiffs have accordingly, published notice in three newspapers in Warangal in Andhra Pradesh as directed. This publication was made on 24th February, 2004.
5. Plaintiffs have filed affidavit of service dated 8th March, 2004, stating that the show cause notices were duly published in two newspapers i.e. Times of India (Hyderabad) and Vartha Warangal (main issue) and thereby contended that services and publication of the show cause notices were completed.
6. Considering the above facts and background, in my opinion, this is a fit case, where Order 21, Rule 41(3) of the C.P.C. is required to be invoked. The basic provision is reproduced as under :
Examination of judgment-debtor as to his property.- (I) Where a decree is for the payment of money the decree-holder may apply to the Court for an order that -
(a) the judgment-debtor, or
(b) (where the judgment-debtor is a corporation), any officer thereof or
(c) any other person,
be orally examined as to whether any or what debts are owing to the judgment-debtor and whether the judgment-debtor has any and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such judgment-debtor, or officer or other person, and for the production of any books or documents.
(2) Where a decree for the payment of money has remained unsatisfied for a period of thirty days, the Court may, on the application of the decree-holder and without prejudice to its power under Sub-rule (1), by order require the judgment debtor or where the judgment-debtor is a corporation, any officer thereof, to make an affidavit stating the particulars of the assets of the judgment-debtor.
(3) In case of disobedience of any order made under Sub-rule (2), the Court making the order, or any Court to which the proceeding is transferred, may direct that the person disobeying the order be detained in the civil prison for a term not exceeding three months unless before the expiry of such term the Court directs his release.
7. The above provisions made it very clear that, if case is made out, the Court has sufficient power to invoke the provisions of Order 21, Rule 41(3). This is a fit case, where such steps should be taken to meet the ends of justice.
8. It. was pointed out, that this Court has also passed such order in other matter bearing Chamber Summons No. 1300 of 2003.
9. Even otherwise, in view of the facts referred above and averments made in the affidavit in support of the chamber summons, I am granting relief in terms of prayer Clause (f). In view of this, the chamber summons is disposed of.
10. No order as to costs.
