This Chamber Summons has been filed seeking a direction against the Defendants / Judgment Debtors to file an affidavit stating the particulars of their assets ( movable and immovable) as provided under Order XXI Rule 41 Sub-rule (ii) of the Code of Civil Procedure, 1908 (for short the “CPC”). Prayer clause (b) in the Chamber Summons is to detain the Defendants/Judgment Debtors in a civil prison, in case they do not comply with the order passed by this Court for disclosure.

2. Initially, since disputes arose between the Plaintiff and the Defendants, the above suit came to be filed in this Court seeking a direction against the Defendants jointly and/or severally to pay to the Plaintiff a sum of Rs.1.26 Crores together with further interest at the rate of 18 % per annum from the date of filing of the suit till payment and or realization.

3. This suit came to be decreed pursuant to an amicable settlement arrived at between the parties by filing the consent terms dated 14th June, 2016. As per these consent terms, Defendant Nos.1 to 7 admitted their liability and in full and final settlement agreed to pay a sum of Rs.1,12,50,214/- to the Plaintiff in installments, the last payment to be made on or before 31st December, 2016. The suit was accordingly disposed of in terms of the consent terms.

4. It is an admitted fact before me that the monies payable as per the consent terms have not been paid by the Defendants to the Plaintiff. The Defendants have paid only an amount of Rs.34,99,786/- and the balance amount of Rs.77,50,428/- together with interest has not been paid. It is, in these circumstances, that the present Chamber Summons has been filed seeking a direction against the Defendants to disclose the particulars of all their assets (movable and immovable) as provided in Order XXI Rule 41 Sub-Rule (2) of the CPC.

5. Defendant No.3 being a partner of Defendant No.1 has filed an affidavit of reply opposing the Chamber Summons. According to the Defendants, the Plaintiff has security worth almost Rs.2.30 Crores and hence there is no necessity for the Defendants to disclose any of their movable and/or immovable assets. It has been further argued by the counsel for the Defendants that this Chamber Summons is not maintainable as it is filed in the suit which is already disposed of and not in the execution proceedings. In other words, it was the submission of the Defendants that since the suit is already decreed and disposed of, this Court becomes functus officio and hence this Chamber Summons cannot be entertained. For all these reasons it was submitted that the Chamber Summons be dismissed.

6. I have heard the learned counsel for parties and have perused the papers and proceedings in the present suit. As far as the maintainability of the Chamber Summons is concerned, I find that this issue is squarely answered by this Court in the case of United Phosphorous Ltd. Vs. A.K.Kanoria [2003 (1) Bom. C.R. 299]. The identical argument that is made before me was sought to be made before this Court in the case of Phosphorus Ltd (supra). This can be found in paragraph 11 of this decision. After considering the law on the subject and relying upon a Division Bench decision of this Court in the case of Cooverji Varjang Vs Cooverbai Nagsey Champsey, [42 Bom. L.R. 564] this Court came to the conclusion that the Chamber Summons filed under Order XXI Rule 41(2) of the CPC can be entertained by the Court that passed the decree. It came to this conclusion on the basis that, this was strictly not an application in execution but it was an application in aid of the execution. Paragraphs 11 and 12 of this decision reads thus -

“11. Shri Chande, the Learned Advocate for the defendant contended that an application under Order XXI, Rule 41 is an application in an execution petition; according to him. Execution commences on filing of written application (commonly called as Execution Application or Darkhast) under Sub-rule (2) of Rule 11 of Order XXI of the Code