IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.26395 OF 2018 (GM-CPC) BETWEEN:
1. MRS. SHEENAM OHRIE, AGED ABOUT 45 YEARS, WIFE OF ALOK OHRIE, 2. MR. ALOK OHRIE, AGED ABOUT 50 YEARS, SON OF LATE S S OHRIE BOTH NOS. 1 AND 2, RESIDING AT NO.3711, 13TH D MAIN, 10TH CROSS, HAL 2ND STAGE, BENGALURU – 560 008.
3. SMT. NISHITA ISRANI AGED ABOUT 44 YEARS, WIFE OF SHRI HIREN ISRANI, RESIDINGAT APT 31, TOWER-5, PEBBLY BAY, 1ST MAIN, RMV 2ND STAGE, DOLLARS COLONY, BENGALURU – 560 094.
4. MR. GANESH MARGABANDHU, AGED ABOUT 55 YEARS, SON OF D.R.MARGABANDHU, RESIDINGAT NO.620, 22ND B MAIN, HSR LAYOUT, 2ND SECTOR, BENGALURU – 560 101.
5. MR. SHAILESH AGARWAL, AGED ABOUT 45 YEARS, SON OF DR. RAMESH CHANDRA, RSIDING AT NO.A 303.
MANTRI CLASSIC APARMENTS, 4TH BLOCK, KORAMANGALA, BENGALURU – 560 034.
ALL REPRESENTED BY GPA HOLDER MR. MANJUNATH ... PETITIONERS (BY SRI. DHANANJAY JOSHI, ADVOCATE) AND:
MR. AJIT PRAKASH, AGED ABOUT 53 YEARS, SON OF LATE M.R.K.NAIR, RESIDING AT NO.B-306, 3RD FLOOR, KRISHNA LILAC APARTMENTS, KAIKONDANAHALLI, SARJAPUR ROAD, BENGALURU – 560 104.
... RESPONDENTS (RESPONDENT SERVED V/O DATED 04.12.2018) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE TRIAL COURT (XVI ADDITIONAL CITY CIVIL JUDGE, BENGALURU (CCH- 12) TO EXERCISE ITS JURISDICTION APPROPRIATELY VIDE ANNEXURE-D UNDER ORDER XXI RULE 41 (2) OF THE CODE OF CIVIL PROCEDURE, 1908, TO HAVE THE RESPONDENT DISCLOSE HIS ASSETS ON AFFIDAVIT AND UPON FAILURE TO MAKE SUCH AFFIDAVIT TO DIRECT THE TRIAL COURT TO ISSUE APPROPRIATE DIRECTIONS VIDE ANNEXURE-C UNDER ORDER XXI RULE 41(3) AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the decree holders in Execution Case No.2568/2016, are grieving before this Court for non- consideration of their application filed under Order XXI Rule 41(2) of CPC, 1908, a copy whereof is at Annexure-D, inter alia contending that the subject provision specifies the action to be taken where the Judgment Debtor fails to declare his Assets & Liabilities in terms of order made under the said provision of the Code. The respondents having been served with the Court notice, have chosen to remain unrepresented in their wisdom.
2. Having heard the learned counsel for the petitioners and having perused the Petition Papers, this Court places on record its anguish qua the proceedings of the Court below inasmuch as for the non-compliance of the order made under Order XXI Rule 41(2) of the Code, the Parliament has prescribed in Rule 41(3) the consequences that should as a matter of course follow; the said provision reads as under:
“41 (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 stating 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.”
instead of bringing into existence those consequences, the Execution petition is being adjourned & adjourned indefinitely on receipt of paltry sums of money from the judgment debtors on every hearing date. This act of the Executing Court militates against the intent & content of the above provision of law.
3. If the Parliament intended that despite of an order for disclosure of assets not being compiled with, the judgment debtor can pay a paltry sums and go away, the text of provisions of order XXI Rule 41(2) would have been much different; we have adopted a system where justice has to be rendered in accordance with law regardless of personal notions of the presiding officers of the Court.
In the above circumstances, the learned Judge of the Executing Court is hereby warned to process the Execution Petition expeditiously and in terms of order XXI Rule 41(2)/(3) by considering petitioners applications at Annexures A & D and report compliance to the Registrar General of this Court.
Writ Petition is disposed off accordingly.
Sd/- JUDGE DS