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2025 DIGILAW 1793 (TS)

Muti-Ur-Rahaman v. Md. Mushtaq

2025-12-11

RENUKA YARA

body2025
ORDER : 1. Heard Mr. Kondadi Ajay Kumar, learned counsel for the petitioners/Judgment debtors and Mr. D. Satyanarayana, learned counsel for the respondent/Decree holder. Perused the record. 2. The Civil Revision Petition is filed by the petitioner Nos.2 to 6/judgment debtor Nos.2 to 6 against the respondent/ Decree holder aggrieved by the order passed by the learned Senior Civil Judge at Adilabad in E.A.No.14 of 2024 in E.P.No.16 of 2018 in O.S.No.15 of 2015, dated 24.10.2024 directing the petitioners herein to appear before the Court for oral examination and to file their affidavit in support of their contention and granting permission to the decree holder to cross examine the petitioners herein. 3. For the sake of convenience, the parties are referred as they are referred in the E.P. 4. The brief facts of the case are that the Decree holder filed a suit for recovery of money of Rs.3,00,000/- with interest at 12% per annum against the deceased JDR No.1 vide O.S.No.15 of 2015 and said suit was decreed on 02.11.2017 directing the deceased JDR No.1 to pay an amount of Rs.4,14,174/-. On passing of the decree, the Decree holder filed E.P.No.16 of 2018 against the deceased JDR No.1 for recovery of the decreetal amount. In said E.P, an order dated 21.07.2023 was passed for attachment of immovable property bearing H.No.3-3-229/1, Shivaji Chowk, Panjesha, Adilabad. Aggrieved by said Order, the petitioner Nos.2 to 6/JDR Nos.2 to 6 preferred C.R.P No.2371 of 2023 to set aside the order in E.P.No.16 of 2018. This Court vide Order dated 21.02.2024 has set aside the impugned order dated 21.07.2023 in E.P.No.16 of 2018 and remitted the matter back to the E.P Court for ascertaining the share of the deceased JDR No.1 and JDR Nos.2 to 6 over the property and to dispose of the property after giving due opportunity to both the parties. 5. Upon remittance of the matter back to the E.P Court, the Decree holder filed E.A.No.14 of 2024 in E.P.No.16 of 2018 under Order XXI Rule 41 r/w Section 151 of CPC to summon the JDRs 2 to 6 for the purpose of satisfying the decree by reporting about partition of E.P schedule property, if any, and the shares devolved out of the share acquired by the principal JDR No.1 after the death of original owner Azeezya Begum, who is the wife of the deceased JDR No.1. Aggrieved by said order, the present Civil Revision Petition is filed. 6. In grounds of revision, the JDRs 2 to 6 have pleaded that it is the responsibility of the Decree holder to provide the information about the property of the JDR No.1 and that an enquiry has to be conducted independently instead of directing the JDR Nos.2 to 6 to appear before the Court for oral examination. Further, it is pleaded that a petition under Order XXI Rule 41 of CPC is filed at a belated stage when such a petition has to be filed prior to filing of the E.P under Order XXI Rule 11(2) of CPC. Lastly, it is pleaded that under Order XXI Rule 41 of CPC, shares in a joint family property cannot be decided. At best, under said provision, the assets of the JDR No.1 can be determined. In view of the foregoing grounds, the JDR Nos.2 to 6 pleaded that the impugned order be set aside and to allow the Civil Revision Petition. 7. The learned counsel for the JDR Nos.2 to 6 relied upon Judgment of the High Court of Bombay in the case of United Phosphorus Ltd. v. A.K. Kanoria , 2002 SCC OnLine Bom 503 , wherein, it is held that an application under Order XXI Rule 41 of CPC is not an execution petition, but an application filed for the purpose of aiding execution of a decree and is a step towards execution. Relevant portion of the said judgment is extracted and produced below: 12. In my opinion, application under Order XXI, Rule 41 CPC is not an application in an execution. It is an application in aid of execution or a step towards the execution. Under Clause (1) of Rule 11(2) of Order XXI of the Code of Civil Procedure, the execution petition must specify the mode in which assistance of the Court is required for the execution of a decree. Clause (j) reads as follows: (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 retention in prison of any person; (iv) by the appointment of a receiver; (v) otherwise, as the nature of the relief granted may require. (ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of any property. (iii) by the arrest and retention in prison of any person; (iv) by the appointment of a receiver; (v) otherwise, as the nature of the relief granted may require. Examination of a judgment debtor under sub-rule (1) of Rule 41 of Order XXI or direction to the judgment debtor to file an affidavit to be issued under sub-rule (2) of Rule 41 or Order XXI is not one of the mode of execution of a decree provided in clause (j) of Rule 11(2) of Order XXI, Rule 30. Disclosure of the assets is a preliminary step towards the execution of a decree, Rule Nos.3 to 9 of Order XXI of the Code of Civil Procedure 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 XXI 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 XXI, 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 judgement debtor. If this be so, the application under Order XXI, Rule 41 would ordinarily precede the filing of an execution petition, though it can also be filed in the pending execution petition itself. I am fortified in this view by the judgment of the Calcutta High Court in Shew Kumar Company v. Grindlays Bank Limited reported in AIR 1986 Cal. 328 wherein the Division Bench observed in para-9 of its Judgment: "We accept the contention of the Respondent that an application for examination of a judgment debtor (under Order XXI, Rule 41) is strictly not an application for execution". 328 wherein the Division Bench observed in para-9 of its Judgment: "We accept the contention of the Respondent that an application for examination of a judgment debtor (under Order XXI, Rule 41) is strictly not an application for execution". In the said case, the Division Bench further held even after the decree is transmitted for execution to another Court, the Court passing the decree retains jurisdiction in respect of the decree and can examine the judgment debtor, under Order XXI, Rule 41. It is not necessary in this case to consider whether the Court which passes the decree retains jurisdiction over the decree even after its transmission for execution to another Court, but I am of the opinion that the Court which passed the decree does not cease to have a jurisdiction to entertain an application under Order XXI, Rule 41 atleast till the decree is transmitted to another court for execution.” 8. Further, reference is made to judgment in the case of N Chandra Chems, Mumbai v. Verma Mukherji Pvt. Ltd. , 2007 (5) Mh.L.J. wherein, it is held that an application under Order XXI, Rule 41(2) of CPC has to be filed prior to initiation of proceedings under Rule 11(2) of Order 21. The purpose was to enable the Decree holder to ascertain the properties of the JDR with respect to properties which are not in the knowledge of JDR. Further, reliance is placed on the judgment of the High Court of Kerala in the case of State Bank of India v. M.K. Raveendran , 2009 SCC OnLine Ker 5078 , wherein it is held that the object of Rule 41 of Order XXI CPC is to enable the Decree holder to get necessary information with respect to properties of JDR so that he can realise his debt without difficulty and trouble. It is an effective provision to obtain discovery in aid of execution of decree which is obtained. Further, an application under Rule 41 of Order XXI CPC is not one of modes of execution of decree provided in Clause (j) of Order XXI Rule 11(2) of the CPC. Under Order XXI Rule 41 of CPC, disclosure of assets of JDR is contemplated as a preliminary step towards execution of the decree. 9. Further, an application under Rule 41 of Order XXI CPC is not one of modes of execution of decree provided in Clause (j) of Order XXI Rule 11(2) of the CPC. Under Order XXI Rule 41 of CPC, disclosure of assets of JDR is contemplated as a preliminary step towards execution of the decree. 9. In response, the learning counsel for Decree holder submitted that the suit for recovery of money was decreed way back in the year 2017 and in spite of lapse of eight (8) years, not a single rupee is recovered from the deceased JDR No.1 and his legal representatives. It is submitted that the provision under Order XLI Rule 41 of CPC is to ascertain the assets of the JDR Nos.2 to 6 for the purpose of realization of decree and in that process, attachment was made of the property bearing H.No.3-3-229/1, Shivaji Chowk, Panjesha, Adilabad. After the attachment, the JDRs 2 to 6 who are the legal heirs of the original JDR No.1 have raised the objection contending that the property which is attached did not stand in the name of the original JDR No.1, but stood in the name of his wife. When the suit was pending, the wife of JDR No. 1 died and therefore he is entitled to 50% of the property and the JDRs 2 to 6 are entitled to the remaining extent of the property. It is submitted that the JDRs 2 to 6 have completely denied liability to pay the compensation on the ground that they have not inherited any property from the deceased JDR No.1 and therefore they are not liable to pay any amount to the Decree holder. It is further submitted that upon hearing the arguments of both the parties, this Court in CRP No.2371 of 2023 has remanded the matter back to the E.P Court for ascertaining the share of deceased JDR No.1 and the shares of JDRs 2 to 6 for the purpose of realizing the decree. It is lastly submitted that the JDRs 2 to 6 who have inherited the property of their father are employing every means available to delay the realization of the decree. 10. It is lastly submitted that the JDRs 2 to 6 who have inherited the property of their father are employing every means available to delay the realization of the decree. 10. When the fact situation of the present E.A under revision is considered, it is seen that the deceased JDR No.1 is the person who has taken the loan of Rs.3,00,000/- from the Decree holder way back in the year 2012 and thereafter, failed to repay the amount. The suit was filed and the same was decreed in the year 2017. After the suit was decreed, when there was failure on the part of the deceased JDR No.1, to satisfy the decree, E.P was filed and attachment of house bearing No.3-3-229/1, Shivaji Chowk, Panjesha, Adilabad, has been effected. When said property was attached, the original JDR No.1 also passed away. When said E.P came for adjudication, the stand taken by the JDRs 2 to 6 who are the legal heirs of the deceased JDR No.1 is that the property attached in the E.P belonged to their mother but not JDR No.1. It is the case of the JDRs 2 to 6 that no property was inherited by them from the deceased JDR No.1 and therefore, they are not liable to pay any amount to the decree holder. 11. While so, it is a point to be noted that the property attached belonged to the wife of the original JDR No.1. It is also an admitted fact that she died. Once she died, as per Mohammedan law, the deceased JDR No.1 inherited 50% of the share and the remaining extent is inherited by the children i.e. the JDR Nos.2 to 6. Further, once the JDR No.1 died, the share inherited by him from his wife's property devolved on his children i.e. JDR Nos.2 to 6. In this fact situation, by operation of Mohammedan law, the JDRs 2 to 6 have inherited or succeeded to the share of the original JDR No.1 in the property of his wife, Azeezya Begum to an extent of 50%. Therefore, there is absolutely no ground for the JDRs 2 to 6 to claim that they did not inherit any property from the deceased JDR No.1. 12. In the present E.A under revision, the Decree holder is not seeking discovery of any new property for the purpose of realizing the decreetal amount. Therefore, there is absolutely no ground for the JDRs 2 to 6 to claim that they did not inherit any property from the deceased JDR No.1. 12. In the present E.A under revision, the Decree holder is not seeking discovery of any new property for the purpose of realizing the decreetal amount. The Decree holder has already identified the property which stood in the name of wife of the deceased JDR No.1 for the purpose of realizing the decreetal amount. Therefore, it can be safely concluded that no new discovery is expected in the E.A which is filed for appearance of the JDRs 2 to 6. The point to be ascertained is the shares of each of the JDR No.2 to 6 which they are entitled to in the property which was owned by their mother. By operation of law, after death of the wife of JDR No.1 and the JDR No.1, the entire property devolves on the JDR Nos.2 to 6. However, said property will not devolve in equal shares on the daughters and the sons. As per Mohammedan law, the sons and daughters get different shares in the property. Therefore, to ascertain the liability of each of the JDR Nos.2 to 6 to the extent of their share, they can be summoned to the Court, and they may be permitted to file the affidavit to support their contention. 13. The E.P Court has merely followed the direction given by this Court in C.R.P No.2371 of 2023, giving an opportunity to the E.P Court to conduct enquiry as to the shares of each of the JDR Nos.2 to 6 and giving opportunity to both the parties. Since the E.P Court is merely executing the order passed by this Court in C.R.P No.2371 of 2023, this Court sees no reason to interfere with the order passed by the learned E.P Court, i.e. the Civil Revision Petition lacks merits and is liable to be dismissed. 14. In the result, the Civil Revision Petition is dismissed. Pending miscellaneous petitions, if any, shall stand closed. No costs.