AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2021 (6) TMI 1156
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the assets of the judgment-debtor, the Court shall attach the assets on the very first date of hearing. (ii) If the decree-holder is not aware of the assets of the judgment-debtor, the Court shall direct the judgment-debtor to deposit the amount within 30 days. (iii) If the decretal/awarded amount is not deposited by the judgment debtor, the judgment-debtor be directed to file the affidavit/additional affidavit of its assets and income within 30 days of the receipt of notice. (iv) If the amount is deposited by the judgment-debtor within 30 days, the judgment-debtor is not required to file the affidavit/additional affidavit of its assets. (v) If the judgment-debtor is a Central Government/State Government/Municipal Corporation/ PSU/Entity of the Central/State Government/Foreign State, the direction to file the affidavit of assets within 30 days is not necessary in the first instance. In such cases, the Court shall direct the judgment-debtor to disclose the particulars of its bank account(s) in which there is sufficient amount to satisfy the decree/award, on affidavit within 30 days. If the amount in the bank account(s) is not sufficient to satisf....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sclosed the assets of the judgment debtor, the Executing Court shall issue notice, attach the assets and direct the judgment-debtor to deposit the decretal amount within 30 days of the receipt of the notice. 57. The Executing Court shall direct the judgment-debtor that if the decretal amount is not deposited, the judgment-debtor shall file the affidavit of assets on the date of cause of action, date of the decree/award as well as on the date of the swearing of the affidavit in Form 16A of Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure within thirty days of the receipt of notice. The oral prayer/application of the decree-holder for issuance of such direction shall be considered sufficient compliance of Order XXI Rule 41(2) of the Code of Civil Procedure. 58. The Executing Court shall further direct that if the judgmentdebtor does not deposit the decretal amount, the judgment-debtor shall file an additional affidavit in the format of Annexures A1/B1 along with the documents mentioned therein within 30 days of the receipt of this notice. 59. It is clarified that if the decretal amount is deposited within 30 days of the receipt of the no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the ordinary course of business such as payment of salary and statutory dues. The Executing Court shall restrain the judgment-debtor from discharging any financial liability, other than the liabilities of Banks/financial institutions, without the permission of the Executing Court. Format of notices 63. The notice to the judgment-debtor other than Central Government / State Government / Municipal Corporation / PSU / Government Entity/Foreign State shall be in Format-I whereas the notice to the Central Government/ State Government/Municipal Corporation/ PSU/Government Entity/Foreign State shall be Format-II which are as under: FORMAT - I "NOTICE (Case Number) (Title of the case) To .................. ...................... ..................... Take Notice that Execution has been filed in respect of a decree/award dated ...........under which you are liable to pay Rs. ..................... to the decree-holder. You are hereby directed to deposit Rs...............with this Court within thirty days of the receipt of this notice. IN the event of failure to deposit Rs............ , you are directed to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..............day of ............20........." Detention of the judgment-debtor for failure to file the affidavit of assets 64. In the event of default of the judgment-debtor to file the affidavit in Form 16A Appendix E Order XXI Rule 41(2) of the Code of Civil Procedure within the stipulated time, the Executing Court shall consider detention of the judgment-debtor in civil prison for a term not exceeding three months under Order XXI Rule 41(3) of the Code of Civil Procedure. However, before passing the detention order, the Executing Court shall issue a show cause notice to the judgment-debtor and afford an opportunity of hearing. The Court may also consider examining the judgment-debtor in terms of Order XXI Rule 41(1) of the Code of Civil Procedure before detaining the judgment-debtor. After the detention order is passed, the Executing Court shall direct the decree-holder to deposit the applicable subsistence allowance which at present is @ Rs.40/- per day per person with the Executing Court for detention of the judgment-debtor. Upon deposit of the subsistence allowance, the Executing Court shall issue non-bailable warrants against the judgment-debtor for his detenti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e whether the judgment-debtor has the means to satisfy the decree/award. In the aforesaid affidavits, the judgment-debtor is required to disclose his occupation and income from all sources in the last five years; particulars of immovable properties in his name as well as joint names; financial assets including all bank accounts, DEMAT accounts, safety deposit lockers; investments including FDRs, stocks, shares, insurance policies, loans, foreign investments; movable assets including motor vehicles, mobiles, computer, laptop, electronic gadgets, gold, silver and diamond jewellery etc.; intangible assets; garnishee(s)/trade receivables; corporate/business interests; disposal and parting away of properties; properties acquired by the family members, inheritance. A salaried judgment-debtor has to disclose the particulars of his employment including salary, D.A., commissions, incentives, bonus, perks, perquisites and other benefits, Income Tax, pension and retirement benefits etc. A self-employed judgment-debtor has to disclose the nature of business/profession, share in business/profession, net worth of the business, number of employees, amount of regular monthly withdrawals, Income Ta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....affidavits on record and grant reasonable time to the judgmentdebtor to remove the defects/deficiencies and simultaneously act on the information available in the deficient affidavit as per law. 69. If any ground for lifting of the corporate veil of a judgmentdebtor company is made out as per law, then all the Directors/Promoters (other than independent/non-executive and nominee directors) of the judgment-debtor Company shall be directed to disclose their personal assets and income in the format of Annexure A1. 70. If any objections are filed raising claims such as HUF character or transfer, agreement to sell, mortgage, tenancy etc. to the property of the judgment-debtor (as existing on the date of the institution of proceedings in which decree was passed), the Executing Court may direct the objector to file a detailed affidavit along with all the relevant documents evidencing his claim including subsequent conduct in relation thereto. Verification of assets of the judgment-debtor 71. Upon filing of affidavit in Form 16A of Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure and the additional affidavits namely Annexures A1, B1 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ow cause notice to the judgment-debtor to show cause as to why he should not be committed to civil prison. The Executing Court shall, upon being satisfied that the judgmentdebtor has means to pay the decretal amount or substantial part thereof and has refused or neglected to pay the same, pass an order for detention of the judgment-debtor in civil prison for a period not exceeding three months in terms of Section 58(1)(a) of the Code of Civil Procedure. Even after release from detention, the judgment-debtor shall remain liable to satisfy the decree/award in terms of Section 58(2) of the Code of Civil Procedure. The Court shall follow the procedure laid down in Sections 51(c), 55 to 59 and Order XXI Rules 37 to 40 of the Code of Civil Procedure for detention of the judgment-debtor. Powers of Execution Court 77. In appropriate cases, the Executing Court may issue any of the following directions: (i) Issue notice and direct the Garnishee(s) to deposit in Court the amount due to the judgment-debtor as per law; (ii) Permit the decree-holder to inspect all the assets and the records of the judgment-debtor in the presence of the Local Commissioner to be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dgment-debtor under Section 209 IPC. Whenever a false claim is made before a Court, it would be appropriate, in the first instance, to issue a show cause notice to the judgment-debtor to show cause as to why a complaint be not made under Section 340 CrPC for having made a false claim under Section 209 IPC and a reasonable opportunity be afforded to the judgment-debtor to reply to the same. If the facts are sufficient to return a finding that an offence appears to have been committed and it is expedient in the interest of justice to proceed to make a complaint under Section 340 CrPC, the Court need not order a preliminary inquiry. But if facts are not sufficient and there is suspicion, albeit a strong one, the Court may order a preliminary inquiry. For that purpose, the Court can direct a State agency to investigate and file a report along with such other evidence that they are able to gather. Once it prima facie appears that an offence under Section 209 IPC has been made out and it is expedient in the interest of justice, the Court should not hesitate to make a complaint under Section 340 CrPC. Reference be made to Sanjeev Kumar Mittal v. State, (2010) 174 DLT 214 for principles re....