Report No. 54
21.23. to 21.25. In the light of the above discussion, we recommend the following change in Order 21, rule 29:
(i) After the words "a decree of such court", the words "or a decree which is being executed by such court" should be inserted1.
(ii) The following proviso should be inserted at the end:-
"Provided that if the decree is one for payment of money, the court shall, if it grants stay without requiring security, record its reasons for doing so."
1. Cf the recommendations in the 27th Report.
Order 21, rule 34
21.26. Order 21, rule 34 should be deleted, in view of our recommendation1 to insert in Order 20 a rule dealing with proceedings for the execution of a document or for the endorsement of a negotiable instrument.
1. See discussion as to Order 20, rule 12B (Proposed).
Order 21, rule 41
21.27. Order 21, rule 41, provides for oral examination of the judgment-debtor in order to find out his assets. The Commission in the earlier Report made a recommendation for the filing of an affidavit by the judgment-debtor1. The Commission recommended that where a judgment debt remained unpaid for 30 days, the decree-holder 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 Commission, much more effective than the examination now in vogue, as the decree-holder (at present) attended the examination without any prior knowledge of the debtor's assets and liabilities.
1. 27th Report, note on Order 21, rule 41.
21.28. The following sub-rule was accordingly recommended to be added:-
"(2) Where a decree for the payment of money has remained unsatisfied for a period of thirty days, the court may, on the application of the decree-holder, order that the judgment-debtor, or in the case of a corporation, any officer thereof, shall make an affidavit stating particulars of his assets; and the power of the Court to make any such order shall be without prejudice to its power under sub-rule (1)".
It was however, considered unnecessary to make any specific provision as to the penalty for failure to make the affidavit in such cases. The Commission noted that the Evershed Committee had suggested1 that the notice should be endorsed with a "penalty notice" under Order 41, 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 compelling him to obey it. This would attract the provisions of Order 42, rule 7, R.S.C., providing for writ of attachment, or committal.
1. Final Report of the Committee on Supreme Court Practice and Procedure, (1953), Cmd. paper 8878, pp. 143-146, paras. 453-456 and form of affidavit, p. 376.
21.29. We agree with the earlier Commission's recommendation regarding the duty to file an affidavit. Further, we are of the view that a penal provision is necessary, in order to secure compliance with the new duty. Accordingly, we recommend that the following should be added1 as sub rule (3), in Order 21, rule 41:
"(3) In case of disobedience to any order under sub-rule (2), the Court making the order, or any court to which the proceeding is transferred, may order the person disobeying it to be detained in the civil prison for a term not exceeding six months, unless in the meantime the court directs his release."
1. This is in addition to the amendment suggested by 27th Report in Order 21, rule 41.
Order 21, rule 57
21.30. With reference to Order 21, rule 57, the earlier Report1 considered one point. It was noted, that where an application for execution is dismissed either by reason of the decree-holder's default or otherwise, the question arises whether an attachment already effeded ceases or not. At present, the' case where the decree-holder's default entails dismissal of the application is covered, but other cases are not. (In the former case, the cessation of the attachment is, at present, compulsory). Local Amendments2 to the rule seek to impose an obligation on the court to direct, in each case of dismissal, whether the attachment is to be regarded as continuing or not.
1. 27th Report, note on Order 21, rule 57.
2. Cf. the Amendments made by the High Courts of Calcutta, Madras, Nagpur, Patna etc.
21.31. In some of the local amendments (e.g. Bombay and Madhya Pradesh), it is further provided that, in the absence of an order to the contrary, the attachment shall cease. This is intended to avoid doubts which are felt sometimes as to whether the dismissal was in fact, for "fault"1.
The earlier Commission, however, considered it necessary to adopt these amendments, as it was felt that where the execution application is dismissed (for default), the attachment must cease. It appears to us that there is need for a clarification; and we are further of the view that cessation of the attachment should not be automatic. It is more convenient if the provision is to the effect that the attachment should continue unless otherwise ordered.
1. See Civil Justice Committee (1925), Report, p. 409, para. 22.
21.32. Accordingly, we recommend that Order 21, rule 57, should be revised as follows:-
"57. (1) Where any property has been attached in execution of a decree, and the Court, for any reason, passes an order dismissing the application, the court shall direct whether the attachment shall Continue or cease.
(2) If the court omits to give such direction, the attachment shall be deemed to continue."
21.33. With reference to Order 21, rule 58, the earlier Report1 discussed a number of points. Of these, the position regarding one of them has been further examined. The Report considered the question of making an express provision as to whether the proceedings under rule 58 et seq and the decisions given thereon will be binding as between the judgment-debtor and a third party claimant. The answer to that question, it was stated, would depend on the question,-who are the parties to suit, and what are the matters raised therein?2
We have examined the position and, it appears to us that the view taken in the earlier Report3 needs no change.
1. 27th Report.
2. Reference was made to AIR 1657 AP 61.
3. For a recent decision, see ILR (1966) 1 All 101 (106).