TaxTMI 
TaxTMI 
2002 (6) TMI 611
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....le an affidavit as provided under Sub-rule (2) of Rule 41 of Order XXI of the Code of Civil Procedure, disclosing the assets held by him. The Chamber Summons was filed without filing an application under Order XXI, Rule 11, (commonly known as an "Execution Petition" or a "Darkhast") of the Code of Civil Procedure. 4. Shri Chande, the Learned Advocate appearing for the defendant opposes the Chamber Summons and contends that Chamber Summons is not maintainable and deserves to be dismissed because according to him, an application under Order XXI, Rule 41 cannot be filed (i) unless a formal decree was drawn up and remains unsatisfied for a period of 30 days thereafter and (ii) without first filing an Execution Petition/Darkhast under Order XXI, Rule 11(2) of the Code of Civil Procedure. 5. Regarding 1st contention: Whether application under Order 21, Rule 41 can be filed before a formal decree is drawn in accordance with Section 33 read with order XX, Rule 6 of the Code of Civil Procedure? 6. Shri Chande invited my attention to Clause Nos. 2, 3, 9, 10 and 14 of Section 2 of the Code of Civil Procedure and contended that the word "Judgment" and "Decree" are separately ....
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.... Chande contended that unless the decree was drawn, it cannot remain unsatisfied for a period of 30 days and therefore, no application under Sub-rule (2) of Order 41 can be made unless the formal decree was drawn. 8. I am unable to agree with the submission of Shri Chande. Sub-rule 6-A of Order 20 (which was introduced by an Amendment Act No. 104 of 1976 with effect from 1-2-1977) reads as under: "6A. Last Paragraph of judgment to indicate in precise terms the reliefs granted.--(1) The last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. (2) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible, and, in any case, within fifteen days from the date on which the judgment is pronounced; but where the decree is not drawn up within the time aforesaid, the Court shall if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certificate the reasons for the delay, and thereupon - (a) an appeal may be preferred against the decree without filing a copy of the decree and in such a case the ....
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....he Judge. If the contention of Shri Chande is accepted then it would mean that though decree holder cannot execute the decree as it is not drawn up though the period of limitation for executing a decree has begun to run. Imagine a case where on account of mistake of the Court, or pending backlog a decree is not drawn up for a period of 12 years. In such a case, if contention of Shri Chande is accepted, the decree would become in executable even before it is signed. Such an interpretation, therefore, cannot be accepted. I therefore, hold that drawing up and signing of a decree by the Judge is not a condition precedent for filing of an execution petition or making of an application under Order XXI, Rule 41 of the Code of Civil Procedure. 10. Regarding 2nd contention: Whether an application under Order XXI, Rule 41 can be filed without or before filing an execution application/Darkhast under Order XXI, Rule 11(2) of the Code of Civil Procedure? 11. Shri Chande, the Learned Advocate for the defendant contended that an application under Order XXI, Rule 41 is an application in an execution petition; according to him. Execution commences on filing of written application (co....
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.... 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 judgement 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. I am fortified in this view by the judgment of the Calcutta High Court in Shew Kumar Company v. Grindlays Bank Limited reported in AIR 1986 Cal 328 wherein the Division Bench observed in para-9 of its judgment: "We accept the contention of the Respondent that an application for examination of a judgment debtor (under Order XXI, Rule 41) is strictly not an application for execution". In the said case, the Division Bench further held even after the decree is transmitted for execution to another Court, the Court passing the decree retains jurisdiction in respect of the decree and can examine t....
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....as taken out under Order XXI, Rule 41 of the Code of Civil Procedure without first filing an execution petition under Order XXI, Rule 11(2) of the Code of Civil Procedure. It was held that the jurisdiction of the Court which passed the decree is limited to correct the clerical and arithmetical mistakes and the Court may in some rare cases also invoke Section 151. It appears that these two judgments of this Court decided by Rebello, J. were not brought to the notice of His Lordship Lodha, J in Balsara Hygiene Products Limited v. Savitri India Limited. There thus, appears to be a conflict in view taken by two learned single judges of this Court. Rebello, J. has held that an application/chamber Summons under Order XXI, Rule 41 cannot be filed without filing an execution petition/Darkhast under Order XXI, Rule 11(2) of the Code of Civil Procedure. Lodha, J has however, allowed the application/chamber Summons under Order XXI, Rule 41 to be filed under the title of the decided suit and before the execution petition in Order XXI, Rule 11(2) was filed, and even before the decree was drawn up. 13. Shri Chande, the Learned Counsel for the petitioner submitted that the conflict needs to be....