JUDGMENT - D.G. KARNIK, J.:---Heard Shri S. Suvarna i/b DSK Legal for the plaintiff, Shri Mr. Prakash Chande i/b H.V. Chande for the defendant and Shri P.V. Shah, Advocate appearing amicus curiae.

2. When this matter came up for hearing before Hon'ble S.A. Bobde, J., on 2-5-2002, he was pleased to request P.V. Shah, Advocate to assist the Court as amicus curiae, Shri Shah ably assisted this Court. I record my deep appreciation of the able assistance rendered by Shri P.V. Shah, Advocate.

3. Facts:

In Summary Suit No. 4600 of 1996 filed by the plaintiff a money decree was passed against the defendant. The plaintiff has filed the present chamber summons for an order of this Court requiring the defendant to file 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 r/w 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 defined to make a distinction between them. "Judgement" contains the reasons for the decision of the Court and in the last paragraph gives concisely the adjudication of the disputes and declares the rights of the parties. "Decree" follows the judgment and contains the matters provided in Order XX, Rule 6, and also contains the amount of costs incurred in the suit and in what proportion such costs are to be paid by whom. The decree is drawn up administratively by the office of the Court and on Judge being satisfied that the decree is in accordance with the judgment, the Judge signs the decree. What is then put in execution is not the judgment of the Court but the decree drawn by the office and signed by the Judge. According to Shri Chande, execution proceedings cannot be commenced until the decree is drawn up.

7. Shri Chande then drew my attention to Order XXI, Rule 41 of the Code of Civil Procedure which reads as under:

41. 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) 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 th

Click Here to Read the rest of this document