VIPUL AGARWAL Vs. ATUL KANODIA AND CO

JUDGEMENT

(1.) AN award of the Arbitrator Tribunal under the Arbitration and Conciliation Act, 1996 was given against the applicant on 17 -11 -1999 for a sum of Rs. 26,18,364 plus interest. Objections of the applicant under Section 34 of the Act against the award were dismissed on 16 -1 -2003. The appeal against that order was also dismissed on 7 -3 -2003. The decree was then put into execution. By the impugned order the District Judge, Kanpur Nagar has ordered for the oral examination of the petitioner under Order XXI, Rule 41 CPC to disclose what assets and means he has to satisfy the decree.

(2.) I have heard Sri Shashi Nandan, learned Counsel for the applicant and Sri S.K. Gupta, learned Counsel for the respondents.

(3.) SRI Shashi Nandan submitted that the scheme of the provisions indicates that a finding that the judgment -debtor has the means to pay has to be recorded at the stage before issuance of warrant of arrest or notice. The submission does not appear to be correct. Section 51 of Civil Procedure Code provides that execution by detention in the civil prison shall not be ordered except after giving opportunity to the judgment -debtor and for reasons to be recorded. The section only requires that opportunity be given and reasons recorded before ordering detention. As yet no detention has been ordered. The warrant of arrest, which has since been withdrawn was issued to secure the presence of the petitioner in Court. The requirement of Section 51 is met even if reasons are given by the Court at a stage after the examination of the judgment debtor under Order XXI, Rule 41 of Civil Procedure Code has been made. The provisions under Order XXI, Rule 41 provides for two contingencies. While sub -rule (1) provides that the judgment debtor can be called upon to give his statement before the Court as regard to assets owned by him. Sub -rule (2) leaves it open to the Court to require the judgment -debtor if the decree has remained unsatified for more than 30 days to file an affidavit indicating therein the assets that he possesses. This sub -rule (2) has been added by the Civil Procedure Amendment Act No. 104 of 1976. The intention of the Legislature made clear by this provision is that if the assets of the judgment -debtor are not clearly known to the decree holder and the decree is not satisfied. Examination of the of the judgment -debtor or his affidavit may be required so that the assets can be ascertained. Sri Shashi Nandan relied upon a decision of this Court in AIR 1964 All 378, Kanhaiya Lal v. Mahabir Prasad Jain, in which it has been held that the burden to prove that the judgment debtor had assets lies upon the decree holder. The decision is distinguishable what was held in that case was in the context of an order of detention which had to meet the requirement of clause (b) of the proviso of Section 5 which postulates a finding that the judgment -debtor has the means to pay. The scope of Order XXI, Rule 41 Civil Procedure Code did not fall for consideration in that case. That apart that decision was given at a point of time when the provisions under sub -rule (2) of Order XXI, Rule 41 Civil Procedure Code had not been inserted in the Civil Procedure Code. Rule 11 -A of Order XXI, Civil Procedure Code is a procedural provision meant only to focus the attention of the parties to enable them to place the material upon which the Court can decide whether execution by detention be ordered under Section 51 Civil Procedure Code. The stage of Rule 11 -A is obviously earlier in point of time to the stage of Rules 40 and 41 of Order XXI. If at all the material on which the Court is to pass an order for civil detention is to be stated in application and affidavit contemplated in Rule 11 -A the provisions of Rule 41 would be virtually redundant - a view which but for compelling reasons cannot be taken. Interpreted in this light I am of the view that at the stage of the application and affidavit under Rule 11 -A it is enough to state broadly the grounds on which execution by detention is sought. These grounds can be supplemented and supported by material which may become available by examination of the judgment -debtor or from his affidavit under Rule 41 or from the evidence led by the parties under Rule 40. While interpreting these provisions it has to be borne in mind that after the decree the judgment -debtor may try to camouflage his assets and properties and it may only be after the curtain is removed by examining him or looking into the books of his business that the assets in his possession become visible. That apart till date no order of detention has been passed.