Report No. 27

Order XXI, rule 41

Order XXI, rule 41, at present empowers the Court (in case of a money decree) to examine the judgment-debtor in order to find out whether any debts are owing to him and what other property or means of satisfying the decree he has.

Similar provision is contained in Order XLII, rule 32- Rules of the Supreme Court. This rule was considered by the Evershed Committee1. It heard representations to the effect, that (even with the examination as to the means) the judgment-creditor had difficulty in ascertaining as to what the assets of judgment-debtor were, and that was the reason why the judgment-creditors resorted to the writ of "fieri facies" to force the judgment-debtor to realise his assets; the judgment-debtor knew what assets he had, while the judgment-creditor did not. The Committee recommended, that where a judgment-debt remained unpaid for 14 days, the judgment-creditor should be entitled to call upon the judgment-debtor to make an affidavit of his assets. The filing of such an affidavit was, in the opinion of the Committee, much more effective than the examination now in vogue, as the judgment-creditor (at present) attended the examination without any prior knowledge of the debtor's assets and liabilities.

It is considered, that the insertion of a provision on the lines suggested by the English Committee would be useful in India also. Necessary change has been proposed. The period, however, has been fixed at 30 days.

Penalty.-It is, however, considered unnecessary to make any specific provision as to penalty for failure to make the affidavit in such cases. (The English Committee suggested3 that the notice should be endorsed with a "penalty notice" under Order XL1, rule 5, Rules of the Supreme Court. Neglect to make the affidavit would thus render the judgment-debtor liable to a process of execution for compiling him to obey it. This would attract the provisions of Order XLII, rule 7, R.S.C. providing for writ of "attachment" or committal)2.

1. Final Report of the Committee on Supreme Court Practice and Procedure (1963) Cmd. paper 8878, pp. 145 and 146, paras. 453-454 and form of affidavit at p. 376.

2. See Final Report of the Evershed Committee, para. 454.

Order XXI, rule 43A (New)

1. The question has been raised how far a custodian of movable property whom property attached in execution is entrusted is liable if he does not look after the property or restore it when required. Since occasions for so entrusting property are frequent, it is considered desirable to lay down the rule on the subject.

2. The U.P. Legislature has in this connection amended section 145 by adding the following Explanation1:-

"Explanation.-For the purposes of this section a person entrusted by a Court with custody of any property attached in execution of any decree or order shall be deemed to have become liable as surety for the restitution of such property within the meaning of clause (b)."

3. The Calcutta High Court has inserted a new order-Order XXIA, and rule 11 of that Order contemplates the enforcement of the "bond" against the custodian.

4. The High Courts of Madras, Andhra Pradesh, Kerala and Madhya Pradesh have achieved the object by providing for the taking of a bond, vide amendments made by those High Courts to rule 43 of Order XXL.

The High Court of Patna has inserted an elaborate provision-rule 43A-which deals at length with the subject.

The High Court of Punjab has added rules 43A to 43D in Order XXI.

5. It is considered that it would be better if provision is made making the custodian liable without the formality of a bond. Section 145, however, does not appear to be the proper place for this. As rule 43 of Order XXI deals with the subject of attachment and the mode of effecting it in the case of movable property, it would be more convenient if the amendment is placed in proximity with that rule.

6. An elaborate provision dealing with the liability of the custodian has been proposed, so as to

(i) deal with the custodian's liability both to the decree-holder and to the judgment-debtor, and also to third parties who may be declared to be owners of the property;

(ii) make this liability enforceable in execution;

(iii) define the limits of this liability by making it dependent on his fault;

(iv) allow appeal in respect of orders determining liability in such proceedings.

1. Cf. Report of the U.P. Judicial Reforms Committee (1950-51), pp. 35-36.