ORAL JUDGMENT: (Per : R.M.S. KHANDEPARKAR J.)

1. Heard the learned counsel for the appellant. None present for the respondent though served. Perused the records.

2. The present appeal arises from order dated 5th August 1989 passed in Chamber Summons No. 1058 of 1998 in Summary Suit No. 889 of 1997. By the impugned order the learned Single Judge has rejected the Chamber Summons whereby the appellant had sought a direction to the respondent in terms of Order 21 Rule 41(2) of Civil Procedure Code. The application of the appellant in that regard has been dismissed holding that the same was premature as there had been no application under Order 21 Rule 11(2) of Civil Procedure Code, 1908.

3. The learned advocate for the appellant placing reliance in the decision of this court in United Phosphorous Ltd. Vs. A. K. Kanoria, reported in AIR 2003 Bombay 97 submitted that the provisions of law comprised in the Civil Procedure Code nowhere require that for the purpose of seeking information regarding the properties of the judgment debtor, there has to be an application under Order 21 Rule 41(2) of Civil Procedure Code on record. On the contrary, such information would be necessary to the decree holder to file an application Under Rule 11(2) and for seeking attachment of the property of the judgment debtor to recover the amount due and payable under the decree.

4. Order 21 Rule 41(2) of Civil Procedure Code provides that where a decree for the payment of money has remained unsatisfied for a period of 30 days, the court may on an application by the decreeholder and without prejudice to its power under subrule (1), 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. The said provision of law comprised under Rule 41 speaks of the procedure to be followed for attachment of the property in execution of the decree for payment of money.

5. Rule 11(2) of Order 21 of the Code of Civil Procedure relates to the written application for execution. It enumerates various particulars which are required to be furnished by the decree holder in an application for execution of a decree. Clause (j) of the said rule reads thus: “(j) The mode in which the assistance of the Court is required whether i) by the delivery of any property specifically decreed; ii) by the attachment , or by the attachment and sale, or by the sale without attachment, of any property; iii) by the arrest and detention in prison of any person; iv) otherwise, as the nature of the relief granted may require.” Evidently, the application for execution which is required to be filed in writing in terms of Order 21 Rule 11(2) of Civil Procedure Code should disclose the particulars of the property which the decree holder seeks to attach for recovery of the money decreed in favour of the decree holder.

6. Rule 30 of Order 21 provides that every decree for the payment of money, including a decree for the payment of money as an alternative to some other relief, may be executed by the detention in the civil prison of the judgment debtor, or by the attachment and sale of his property, or by both.

7. The provisions of law comprised under section 55 to 59 deals with the power of the court in relation to arrest and detention of judgment debtor in the process of execution of a decree whereas sections 60 to 64 deal with the power of the court as well as the liability of the judgment debtor and corresponding rights of the decree holder for attachment of the property of the judgment debtor in execution of a decree. Those sections make elaborate provisions regarding the proceedings which can be initiated against a judgment debtor in execution of a decree for payment of money. It is also settled law that in an execution proceeding of a money decree, the judgment debtor cannot be arrested and detained in a civil prison unless he is given an opportunity of either complying with the decree or

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