Petition seeking disclosure of assets - Court which pass the decree has Jurisdiction to entertain - can be filed before filing EP - Not only for attachment and sale - even for arrest EP asset enquiry petition is Maintainable.

Kerala High Court

Kizhoor Kshethra Samrakshana ... vs Preetha Gangadharan

 
                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT:

                 THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

         THURSDAY, THE 27TH DAY OF SEPTEMBER 2012/5TH ASWINA 1934

                           OP(C).No. 3154 of 2012 (O)
                             --------------------------
              EP.NO.3/2011 IN OS.4/2008 of SUB COURT, OTTAPPALAM


PETITIONER(S):
-------------

       1. KIZHOOR KSHETHRA SAMRAKSHANA SAMITI
          REPRESENTED BY PRESIDENT ARUMUGHAN, S/O.VELAYUDHAN
          CHAKKUMPARAMBIL VEEDU, THRIKKADEERI VILLAGE
          KIZHOOR DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.

       2. KIZHOOR KSHITHRA SAMRAKSHANA SMITI
          REPRESENTED BY JOINT SECRETARY MANI @ NARAYANANKUTTY
          S/O.GOPALAN NAIR
          KUNNATHUKULAM VEEDU, THRIKKADEERI VILLAGE
          KIZHOOR DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.

       3. KIZHOOR KSHETHRA SAMRAKSHANA SAMITI
          REPRESENTED BY TREASURER PREMAKUMAR, S/O.KESAVAN
          SANTHI NILAYAM, THRIKKADEERI VILLAGE, KIZHOOR DESOM
          OTTAPALAM TALUK, PALAKKAD DISTRICT.

       4. KIZHOOR KSHETHRA SAMRAKSHANA SAMITI
          REPRESENTED BY ASSISTANT TREASURER RAJESH MASTER
          S/O.UNNIKRISHNAN MASTER, CHERTHALA VEEDU
          THRIKKADEERI VILLAGE, KIZHOOR DESOM
          OTTAPALAM TALUK, PALAKKAD DISTRICT.

          BY ADV. SRI.P.JAYARAM

RESPONDENT(S):
--------------

       1. PREETHA GANGADHARAN
          W/O.CHANGARAMTHODI DECEASED GANGADHARAN
          ANANGANADI VILLAGE, DESOM, OTTAPALAM TALUK
          PALAKKAD DISTRICT-679501.

       2. SHIJU GANGADHARAN (MINOR)
          REPRESENTED BY MOTHER PREETHA GANGADHARAN
          ANANGANADI VILLAGE, DESOM, OTTAPALAM TALUK
          PALAKKAD DISTRICT-679501.

O.P.(C) No.3154 of 2012

                                    : 2 :

      3. SANJU GANGADHARAN (MINOR)
         REPRESENTED BY MOTHER PREETHA GANGADHARAN
         ANANGANADI VILLAGE, DESOM, OTTAPALAM TALUK
         PALAKKAD DISTRICT-679501.

      4. KIZHOOR KSHETHRA SAMRAKSHANA SAMITHI
         REPRESENTED BY VICE PRESIDENT RADHAKRISHNAN
         S/O.GOVINDAN, VADAKKEPURAKKAL VEEDU
         THRIKKADEERI VILLAGE, KIZHOOR DESOM
         OTTAPALAM TALUK, PALAKKAD DISTRICT-679501.




        THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27-09-2012,
        THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

                    APPENDIX IN O.P.(C) NO.3154 OF 2012


PETITIONER(S) EXHIBITS

EXHIBIT-P1. TRUE COPY OF THE EXECUTION PETITION IN E.P.NO.3/2011,
            O.S.NO.4/2008, SUB COURT, OTTAPALAM.

EXHIBIT-P2. TRUE COPY OF THE COUNTER STATEMENT OF RESPONDENTS IN
            E.P.NO.3/2011, O.S.NO.4/2008, SUB COURT, OTTAPALAM.

EXHIBIT-P3. TRUE COPY OF THE AFFIDAVIT IN E.A.NO.319/2012 IN
            E.P.NO.3/2011, O.S.NO.4/2008, SUB COURT, OTTAPALAM.

EXHIBIT-P4. TRUE COPY OF THE COUNTER STATEMENT IN E.A.NO.319/2012 IN
            E.P.NO.3/2011, O.S.NO.4/2008, SUB COURT, OTTAPALAM.

EXHIBIT-P5. TRUE COPY OF THE ORDER DATED 22.08.2012 IN E.A.NO.319/2012
            IN E.P.NO.3/2011, O.S.NO.4/2008, SUB COURT, OTTAPALAM.




                                     //TRUE COPY//




                                                  P.S. TO JUDGE.



                      V.CHITAMBARESH, J.
                        -------------------------------
                   O.P.(C) No. 3154 of 2012
                        -------------------------------
         Dated this the 27th day of September, 2012


                          J U D G M E N T

The court below has by the order impugned directed the judgment debtors to file an affidavit stating the particulars of their assets on motion made by the decree holder under Order XXI Rule 41 of the Code of Civil Procedure. Such procedure can be resorted to even for personal execution in a decree for realisation of money as held in State Bank of India v. Raveendran (2009 (4) KLT 683). It has been held therein as follows:-

An executing court is bound to facilitate the execution of the decree passed by a court and as R.41 of O.21 of the C.P.C. is only an aid in execution, its scope and applicability cannot be confined to cases where attachment of property is sought as mode of execution, but, in cases of personal execution of the judgment debtor by arrest and detention as well.

I have no reason to doubt the correctness of the dictum laid down in Raveendran's case afore-quoted and the court below was well within its powers in passing the order impugned. The disclosure of the assets by the judgment debtors  O.P.(C) No.3154 of 2012 is a preliminary step towards execution of the decree especially when the details of assets is within their special knowledge. It will be wholly unholy for the judgment debtors to conceal their assets and suppress the income therefrom and at the same time plead no means to avoid arrest and detention in civil prison. I am not inclined to interfere with the order of the court below in exercise of the jurisdiction under Article 227 of the Constitution of India.

The original petition fails and is dismissed.

V.CHITAMBARESH, Judge.

nj.