Read Time: 08 minutes

The Delhi High Court in a recent judgement has held that a judgement debtor in a money decree cannot be compelled in a routine manner to disclose all the information under Order XXI Rule 41 of  Civil Procedure Code.

The observation was made by a bench comprising Justices Rajiv Sahai Endlaw and Amit Bansal while hearing an appeal preferred by judgement debtors who had been directed by the Commercial Court to file additional affidavits without the decree holder applying for the same.

The judgement debtors argued that though Order XXI Rule 41(2) of the CPC provides for a direction to the judgment debtor to file affidavit in the form prescribed therein only when the decree for payment of money had remained unsatisfied for a period of 30 days and only on the application of the decree holder, the Commercial Division, in violation thereof had directed filing of affidavits without there being any application of the decree holder therefor and without the decree having remained unsatisfied.

The Commercial Court while directing the filing of additional affidavits had relied on the previous judgement of the High Court in Bhandari Engineers & Builders Pvt. Ltd vs Maharia Raj Joint Venture.

The Court observed that the insistence on the format laid down by the High Court in Bhandari Engineers & Builders Pvt. Ltd. supra, in which the judgment debtors in every execution are required to furnish information, “is a waste of time of the Court and permits decree holder and others inimical to the judgment debtor, to make a roving and fishing enquiry relating to the affairs of the judgment debtors and to the prejudice of the judgment debtors”.

The Court however observed that “though the purpose with which the Court in Bhandari Engineers & Builders Pvt. Ltd. supra proceeded to issue directions in general, i.e. to ensure that monies under a decree are realized at the earliest, is laudatory but we are afraid, the Court proceeded beyond its powers and jurisdiction.”

The Court observed that Order XXI Rule 41 could not have been issued without the decree holder applying therefor and set aside the order of the Commercial Division Court directing the judgment debtors to file additional affidavits or for that matter affidavits in any form, in exercise of powers under Order XXI Rule 41 of the CPC.

The Court further observed that “The Hon’ble Judge, in Bhandari Engineers & Builders Pvt. Ltd. supra, if felt any need for any change to be made in Order XXI Rule 41 or in Form 16A in Appendix-E, with all due respect, could not have proceeded to do the same himself and was required to refer the same to Hon’ble the Chief Justice, to, if so deemed fit, place the matter for consideration, first by the Rules Committee, which is a statutory committee as aforesaid, and thereafter by the Full Court. The aforesaid provisions having prescribed the procedure for formulating Rules and / or for making changes in Orders I to LI and Appendix A to H to the CPC, Rules / changes could not be made without following the said procedure.”

“We are thus of the view that Bhandari Engineers & Builders Pvt. Ltd. supra, to the extent extends what is laid down therein to execution proceedings pertaining to all money decrees and to all courts executing a money decree, cannot said to be good law. Axiomatically, what is held in Bhandari Engineers & Builders Pvt. Ltd. supra could not have been followed in the execution proceedings from which this appeal arises.”

 

Case Title: DELHI CHEMICAL AND PHARMACEUTICAL WORKS PVT. LTD. & ANR Vs. HIMGIRI REALTORS PVT. LTD. & ANR