Chokha Nand Madan vs Asian Exhibitors
1989 Latest Caselaw 448 Del

JUDGMENT

Mahesh Chandra, J.

(1) (ORAL)-THIS Civil Revision is directed against order dated 9th December, 1988 of Sub-Judge) 1st class whereby application of decree-holder-petitioner filed under Order 21 Rule 41 Civil Procedure Code for directions to judgment-debtor to appear and disclose his assets has been dismissed. I have heard counsel for the parties and after giving my considered thought to the matter before me, I have come to the conclusion that this Civil Revision must succeed.

(2) Facts giving rise to this petition are that petitioner- decree-holder had filed an application under Order 23 Rule 41 of Civil Procedure Code for directions to judgment debtor-respondent to disclose his assets and the said application was virtually dismissed summarily by the executing court with the observations that 'it is the duty of the decree-holder to find out the assets of judgment- debtor to get the decretal amount recovered. The responsibility cannot be shifted upon the judgment debtor'. It appears that the learned trial court has not even cared to go through the provisions of Order 21 Rule 41 of the Civil Procedure Code ., which lays down as under:- "41.Examination of judgment-debtor as to his property- (1) 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 staling 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."

(3) Perusal of sub-rule (1) of Rule 41 of the Civil Procedure Code shows itself that it was open to a decree-holder to seek the assistance of the court and court is obliged under this rule to grant request of the decree-holder in order to find out the assets of the judgment debtor.

(4) There is a purpose behind these provisions of Rule 41 and that is to further the interest of justice. Such like provisions have assumed greater importance in the present day circumstances when the human relationship has increasingly become impersonal and decree-holder has ordinarily no means to know the assets of judgment debtor. This proposition has not been seriously challenged by Mr. Malhotra, learned counsel for the respondent but what has contended before me is that he is not infact a judgment debtor and the decree was not executable. Be it as it may, considering that application has been dismissed on short ground that it is the duty of the decree-holder to find out the assets of the judgment debtor, in utter disregard the provisions of Order 21 Rule 41 Civil Procedure Code ., this revision petition is allowed and the lower court is now directed to reconsider the entire matter afresh and also to decide the objections of respondent as to whether the decree is executable and whether the- respondent is or is not a judgment debtor within the meaning of Order 21 Civil Procedure Code The impugned order is set aside. No orders as to costs. Parties are directed to appear before the trial court on 3rd November, 1989, the date already fixed. Trial court record be sent back.