Ashwani Kumar vs Punjab Sate Warehouse Corp. and Another

A.N. Jindal, J.—These two revision petitions are decided together as the same arise out of the common order dated 1.11.2011, vide which

the application moved by the respondents for recording of the statement of the petitioners was allowed. The factual back ground of the case is that

an award dated 29.4.2004 for recovery of Rs. 26,79,178/- was passed by the Arbitrator against M/s Shiva Rice and General Mill-respondent

No. 2, as well as Gian Chand Jindal (the sole proprietor of the firm). The award attained finality. However, before execution was filed on

9.3.2009, Gian Chand, the sole proprietor died on 1.6.2008. Respondent No. 2 without impleading the legal representatives of the deceased Gian

Chand filed execution and moved an application under Order 21 Rule 41 of the CPC for directing the legal representatives of the judgment-debtor

i.e. deceased Gian Chand to appear in the Court for the purpose of examination.

Learned counsel for the petitioners has stated that since the execution is inherently defective as the same was filed against the dead person

without impleading his legal representatives, therefore, they could not be summoned by the court for making such statement, unless they are treated

as successors-in-interest (legal representatives) of the judgment debtor/Gian Chand.

To the contrary, learned counsel for the respondents has urged that the court is vested with all the powers to summon and examine any person

for satisfaction of the decree. Order 21 Rule 41 of the Code reads as under:-

Examination of judgment-debtor as to his property. [(1)] Where a decree is for the payment of money the decree holder may apply to the

Court for an order that

(a) the judgment-debtor, or

(b) [where the judgment-debtor is a corporation], any officer thereof, or

(c) any other person, be orally examined as to whether any or what debts are owing to the judgment-debtor and whether the judgment-debtor has

any and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such

judgment-debtor, or officer or other person, and for the production of any books or documents.

[(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.]

From the bare perusal of the Rule, it transpires that the court has the power to examine the judgment debtor or any person connected with

execution against whom decree is being executed and the rule does not apply to any person unrelated to the execution. However, before the

petitioners could be summoned, they would have to be impleaded as parties in place of original judgment-debtor deceased Gian Chand. As such,

before impleading them as party to the execution, they could not be summoned.

Resultantly, the impugned order is rendered perverse, warranting interference by this Court. Resultantly, this petition is accepted, impugned

order is set aside and the trial court is directed to proceed in accordance with law.