Drawing up of formal decree - Not a condition precedent - last paragraph of the decree should be deemed to be a decree for the purpose of execution - Application under O. 21, R. 41 - Is not anapplication for execution of decree - Application can precede filing of execution petition.

Citation

AIR 2003 BOMBAY 97

BOMBAY HIGH COURT

(Principal Seat at BOMBAY)

D. G. KARNIK , J.

Summons No. 937 of 2001 In Summary Suit Nos. 4600 of 1997, 

D/- 13 - 6 - 2002

United Phosphorous Ltd Plaintiff v. A. K. Kanoria Defendant

(A)Civil P.C. (5 of 1908), O.21 R.11(2), O.21 R.41, O.20 R.6A(2)(b), S.33, S.47 - Execution

petition - Filing of - Drawing up of formal decree - Not a condition precedent.

O. 21 R. 6-A (2) (b) specifically lays down that so long as the decree is not drawn up, the last paragraph

of the decree should be deemed to be a decree for the purpose of execution. By a legal fiction, last

part of the judgment containing adjudication of the rights of the parties, is regarded as the decree.

Thus, drawing up of a decree is not and cannot be a condition precedent for filing of an 'execution

petition' or an application under Order 21, Rule 41 of the Code. Further Article 136 of the Limitation

Act prescribes the time limit for execution of the decree to be 12 years from the date when the decree

or order becomes enforceable. The period of limitation starts from the date of the decree (i.e. the date

of the judgment under Order 20, Rule 7 of the Code) and not from the date when the decree is actually

drawn up and signed by the Judge. Therefore drawing up and signing of a decree by the Judge is not

a condition precedent for filing of an execution petition or making of an application under Order 21,

Rule 41 of the Code.

 (Paras 8 , 9) 

(B)Civil P.C. (5 of 1908), O.21 R.41, O.21 R.11(2) - Application under O. 21, R. 41 - Is not an

application for execution of decree - Application can precede filing of execution petition.

Examination of a judgment debtor under sub-Rule (1) of Rule 41 of Order 21 or direction to the

judgment debtor to file an affidavit to be issued under sub-Rule (2) of Rule 41 or Order 21 is not one

of the mode of execution of a decree provided in Clause (j) of Rule 11 (2) of Order 21. Disclosure of

the assets is a preliminary step towards the execution of a decree, Rule Nos. 3 to 9 of

Order 21 of the Code contemplate transfer of a decree by the Court which passed the decree to another

Court for execution. The decree holder, who is not aware of the assets of the judgment debtor, is often

unable to decide in which Court he should file the execution petition or in which Court he should get

the decree transferred unless he knows the particulars of the assets of the judgment debtor. Rule 41

of Order 21 enables the decree holder to get from the judgment debtor the information of the assets,

which is within the special knowledge of the judgment debtor. Therefore an application under Order

21, Rule 41 is not an application for execution of the decree but, merely an aid to the decree holder

to enable him to execute the decree by obtaining information which is within the special knowledge

of the judgment debtor. If this be so, the application under Order 21, Rule 41 would ordinary precede

the filing of an execution petition, though it can also be filed in the pending execution petition itself.

Chamber Summons No. 864 of 1998 held per incuriam AIR 1940 Bombay 330, Foll.

AIR 1987 Cal 328, Rel. on.

 (Paras 11 , 14) 

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