M/S Bhandari Engineers & Builders Pvt Ltd vs M/S Maharia Raj Joint Venture & Ors

,,,,,,

J.R. Midha, J",,,,,,

In execution proceeding, the Executing Court has to ascertain the assets and income of the judgment-debtor to determine, whether the judgment-debtor has the",,,,,,

means to satisfy the money decree. In many developed countries, the law prescribes a comprehensive format of affidavit of assets, income, expenditure and",,,,,,

liabilities to be filed by the judgment-debtor at the very threshold of execution proceedings to ascertain the financial means of judgment-debtor. However, Form",,,,,,

16A of Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure is not exhaustive to ascertain all the assets, income, expenditure and liabilities of",,,,,,

the judgment-debtor.,,,,,,

Vide judgment dated 05th December, 2019, this Court, after considering the best international practices with respect to mandatory filing of an affidavit of",,,,,,

assets, income, expenditure and liabilities by the judgment-debtor, formulated the formats of affidavits to be filed by the judgment-debtor at the very threshold of",,,,,,

the execution proceedings. This Court also laid down the guidelines for expeditious hearing and disposal of execution cases.,,,,,,

Vide judgment dated 05th December, 2019, this Court sought the response and suggestions of the Courts below as well as the Delhi High Court Bar",,,,,,

Association on the working of the aforesaid guidelines. The Trial Courts have submitted their response. Suggestions have been received from the Bar members,",,,,,,

which have been considered by this Court.,,,,,,

This Court is of the view that the directions issued by this Court in the judgment dated 05th December, 2019 and formats of the affidavits (Annexures A, B",,,,,,

and C) formulated by this Court require modification, in order to make them more comprehensive. The judgment dated 05th December, 2019, is hereby modified.",,,,,,

The modified directions are as under:,,,,,,

Modified Directions,,,,,,

Delays and difficulties in execution of decrees/awards erode public confidence and trust in the justice delivery system. Execution jurisdiction deserves special,,,,,,

attention and expeditious disposal considering that the decree-holders have already succeeded in the litigation and hold a decree/award in their favour.,,,,,,

In Satyawati v. Rajinder Singh, (2013) 9 SCC 491, the Supreme Court quoted the Privy Councilâ€s judgment of 1872 that theâ €œdifficulties of a litigant in",,,,,,

India begin when he has obtained a decree†and observed that the position has not improved and the decree-holders still face the same problems. The Supreme,,,,,,

Court further observed that if there is an unreasonable delay in execution of a decree, the decree-holder would be unable to enjoy the fruits of his success and",,,,,,

the entire effort of successful litigant would be in vain. The relevant observations of the Supreme Court are reproduced as under: -,,,,,,

“……. In relation to the difficulties faced by a decree-holder in execution of the decree, in 1872, the Privy Council had observed [General",,,,,,

Manager of the Raj Durbhunga v. Coomar Ramaput Sing, (1871-72) 14 MIA 605 : 20 ER 912] that: (MIA p. 612)",,,,,,

“… the difficulties of a litigant in India begin when he has obtained a decree.â€​,,,,,,

Even today, in 2013, the position has not been improved and still the decree-holder faces the same problem which was being faced in the",,,,,,

past……………,,,,,,

xxx xxx xxx,,,,,,

It is really agonising to learn that the appellant-decree-holder is unable to enjoy the fruits of her success even today i.e. in 2013 though the,,,,,,

appellant-plaintiff had finally succeeded in January 1996. As stated hereinabove, the Privy Council in General Manager of the Raj Durbhunga v.",,,,,,

Coomar Ramaput Sing, (1871-72) 14 MIA 605 : 20 ER 912] had observed that the difficulties of a litigant in India begin when he has obtained a",,,,,,

decree. Even in 1925, while quoting the aforestated judgment of the Privy Council in Kuer Jang Bahadur v. Bank of Upper India Ltd. [AIR 1925",,,,,,

Oudh 448 (PC)] the Court was constrained to observe that: (AIR p. 448),,,,,,

“Courts in India have to be careful to see that the process of the Court and the law of procedure are not abused by judgment-debtors in such a way,,,,,,

as to make courts of law instrumental in defrauding creditors, who have obtained decrees in accordance with their rights.â€​",,,,,,

In spite of the aforestated observation made in 1925, this Court was again constrained to observe in Babu Lal v. Hazari Lal Kishori Lal [(1982) 1",,,,,,

SCC 525] in para 29 that: (SCC p. 539),,,,,,

“29. Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree-holder starts in getting possession in,,,,,,

pursuance of the decree obtained by him. The judgment-debtor tries to thwart the execution by all possible objections.â€​,,,,,,

xxx xxx xxx,,,,,,

……… the position has not been improved till today. We strongly feel that there should not be unreasonable delay in execution of a decree,,,,,,

because if the decree-holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in",,,,,,

vain.â€​,,,,,,

Order XXI of the Code of Civil Procedure lays down the procedure for the execution of the decree. Order XXI Rule 1(b) of the Code of Civil Procedure,,,,,,

enables the judgment-debtor to directly pay the decretal amount to the decree-holder. Order XXI Rule 1(a) of the Code of Civil Procedure gives an option to the,,,,,,

judgment-debtor to deposit the decretal/award amount with the Executing Court and give the notice of deposit to the decree-holder under Order XXI Rule 1(2) of,,,,,,

the Code of Civil Procedure. Thus, in an ideal situation, the judgment-debtor is supposed to satisfy the decree/award without waiting for the institution of an",,,,,,

execution case. For example, after the awards are passed by Motor Accident Claims Tribunals in motor accident claims, the insurance companies voluntarily",,,,,,

deposit the award amounts with the Claims Tribunal.,,,,,,

If the judgment-debtor does not voluntarily satisfy the decree/award, the decree-holder is compelled to initiate the execution proceedings. If the decree-holder",,,,,,

is aware of the assets of the judgment-debtor, the Executing Court attaches the assets at the very threshold of the execution proceedings. The Executing Court",,,,,,

thereafter initiates proceedings for sale of the attached assets of the judgment-debtor.,,,,,,

If the decree-holder is not aware of the complete assets and income of the judgment-debtor, the Executing Court directs the judgment-debtor to disclose his",,,,,,

assets in Form 16A of Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure.,,,,,,

Form 16A of Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure is not exhaustive to ascertain all the assets and income of the,,,,,,

judgment-debtor. As a result, the execution proceedings keep on lingering at the mercy of the judgment-debtor.",,,,,,

In many countries namely United Kingdom, U.S.A, Canada, Australia, Singapore, Ireland, New Zealand and South Africa, the law prescribes a mandatory",,,,,,

comprehensive format of assets, income, expenditure and liabilities to be filed by the judgment-debtor.",,,,,,

This Court is satisfied that there is an urgent need to formulate a detailed format of affidavit of assets and income to be filed by the judgment-debtor at the,,,,,,

very threshold of the execution proceedings to curb the delay and expedite the disposal of execution proceedings.,,,,,,

Justice is the ideal to be achieved by law. Justice is the goal of law. “Law as it isâ€, may fall short of 'Law as it ought to be' for doing complete justice in a",,,,,,

cause. The gap between the two gives an occasion to the Court to develop the law by evolving juristic principles for doing complete justice according to the,,,,,,

current needs of the society. J.S. Verma, former CJI, in his lecture titled “New Dimensions of Justiceâ€​, (1997) 3 SCC J3 observed that: -",,,,,,

“Law, Justice and Morality",,,,,,

Justice is the ideal to be achieved by Law. Justice is the goal of law. Law is a set of general rules applied in the administration of Justice. Justice is in,,,,,,

a cause and depends on application of law to a particular case. Jurisprudence is the philosophy of law. Jurisprudence and Law have ultimately to be,,,,,,

tested on the anvil of administration of justice. ""Law as it is"" may fall short of ""Law as it ought to be"" for doing complete justice in a cause. The gap",,,,,,

between the two may be described as the field covered by Morality. There is no doubt that the development of the law is influenced by morals. The,,,,,,

infusion of morality for reshaping the law is influenced by the principles of Equity and Natural Justice, as effective agencies of growth. The ideal state",,,,,,

is when the rules of law satisfy the requirements of justice and the gap between the two is bridged.,,,,,,

It is this attempt to bridge the gap which occasions the development of New Jurisprudence.,,,,,,

Existing Gaps,,,,,,

The existence of some gap between law and justice is recognised by the existing law itself. This is the reason for the recognition of inherent powers of,,,,,,

the court by express provision made in the Code of Civil Procedure and the Code of Criminal Procedureâ€​,,,,,,

(Emphasis Supplied),,,,,,

Section 151 of the Code of Civil Procedure empowers this Court to make such orders as may be necessary to secure ends of justice or to prevent the abuse,,,,,,

of process of the Court in exercise of its inherent powers. The power under Section 151 of the Code of Civil Procedure is extraordinary in its nature and is to be,,,,,,

exercised to do real and substantial justice, for which the Courts exist. Article 227 of the Constitution confers on this Court the power of superintendence over",,,,,,

the subordinate Courts. The paramount consideration behind vesting such wide power of superintendence in this Court is to keep the path of justice clear of,,,,,,

obstructions which would impede it. It is the salutary duty of this Court to prevent the abuse of the process, miscarriage of justice and to correct the irregularities",,,,,,

in the judicial process.,,,,,,

In exercise of powers under Sections 30 and 151 and Order XXI Rule 41 of the Code of Civil Procedure read with Sections 106 and 165 of the Indian,,,,,,

Evidence Act and Article 227 of the Constitution of India, this Court has formulated the formats of affidavit of assets, income, expenditure and liabilities to be",,,,,,

mandatorily filed by the judgment-debtor in execution cases.,,,,,,

The modified format of affidavit of assets and income of the judgment-debtor is Annexure A1 hereto. The modified format of affidavit of assets and income,,,,,,

of a proprietorship firm/partnership firm/HUF/Company /Trust as a judgment-debtor is Annexure B1 hereto. The modified format of the affidavit of expenditure,,,,,,

of the judgment-debtor is Annexure C1 hereto.,,,,,,

The aforesaid three affidavits, namely Annexures A1, B1 and C1 are very comprehensive and they give a complete overview of the entire assets, income,",,,,,,

expenditure and liabilities as well as standard of living of the judgment-debtor.,,,,,,

Relevant Legal Provisions,,,,,,

Order XXI Rule 41(2) of Code of Civil Procedure â€" Judgment-debtor to Disclose Assets,,,,,,

Order XXI Rule 41(2) of the Code of Civil Procedure empowers the Executing Court to direct the judgment-debtor to disclose his assets on affidavit in Form,,,,,,

16A of Appendix E to ascertain his assets/means to satisfy the decree. Order XXI Rule 41(2) of the Code of Civil Procedure is reproduced herein below: -,,,,,,

“Order XXI Rule 41,,,,,,

(1)…………………,,,,,,

(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 and without prejudice to its power under sub-rule (1), by order require the judgment-debtor or where the judgment-debtor is a corporation,",,,,,,

any officer thereof, to make an affidavit stating the particulars of the assets of the judgment-debtor.â€​",,,,,,

Form 16A of Appendix E of Code of Civil Procedure â€" Format of Affidavit of Assets,,,,,,

Form 16A of Appendix E of the Code of Civil Procedure is the format of the affidavit of assets to be filed by the judgment-debtor, which is reproduced herein",,,,,,

below: -,,,,,,

“[No. 16A,,,,,,

Affidavit of Assets to be made by a Judgment-debtor,,,,,,

[O. XXI, r.41(2)]",,,,,,

In the Court of,,,,,,

A.B……… .................................…………………………. Decree-holder.,,,,,,

Versus,,,,,,

C.D..............................……… ………………………….. Judgment-debtor.,,,,,,

I………………….. of …………………..state on Oath/solemn affirmation as follows:-,,,,,,

My full name is …………………………………… (Block Capitals),,,,,,

I live at,,,,,,

I am*……………………married/single/widower (widow)/ divorced,,,,,,

The following persons are dependant upon me:-,,,,,,

My employment, trade or profession is that of ……………..carried on by me at",,,,,,

…………………………………………………………….,,,,,,

I am a director of the following companies:-,,,,,,

My present annual/monthly/weekly income, after paying income-tax, is as follows:-",,,,,,

(a) From my employment, trade or profession Rs…………",,,,,,

(b) From other sources Rs…………,,,,,,

*(a) I own the house in which I live; its value is Rs……………,,,,,,

I pay as outgoings by way of rates, mortgage, interest, etc., the annual sum of Rs……………",,,,,,

(b) I pay as rent the annual sum of Rs……………….,,,,,,

I possess the following:-,,,,,,

(a) Banking accounts;,,,,,,

(b) Stocks and shares;,,,,,,

(c) Life and endowment policies; Give particulars,,,,,,

(d) House property;,,,,,,

(e) Other property;,,,,,,

(f) Other securities;,,,,,,

The following debts are due to me:-(give particulars),,,,,,

(a) Form ……. of ……………………… Rs.,,,,,,

(b) From …….of ……………………… Rs……. .(etc.),,,,,,

Sworn before me, etc. ]",,,,,,

*Strike off the word which are not applicableâ€​,,,,,,

Order XXI Rule 41(1) of Code of Civil Procedure â€" Oral Examination of Judgment-Debtor,,,,,,

Order XXI Rule 41(1) of the Code of Civil Procedure empowers the Executing Court to orally examine the judgment-debtor. Order XXI Rule 41(1) of the Code,,,,,,

of Civil Procedure is reproduced hereunder: -,,,,,,

“Order XXI Rule 41(1) - Examination of judgment-debtor as to his property,,,,,,

(1) Where a decree is for the payment of money the decree-holder may apply to the Court for an order that,,,,,,

(a) the judgment-debtor, or",,,,,,

(b) where the judgment-debtor is a corporation, any officer thereof, or",,,,,,

(c) any other person, be orally examined as to whether any or what debts are owing to the judgment-debtor and whether the judgment-debtor has any",,,,,,

and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such judgment-,,,,,,

debtor, or officer or other person, and for the production of any books or documents.â€​",,,,,,

(Emphasis Supplied),,,,,,

Order XXI Rule 41(3) of Code of Civil Procedure - Detention of Judgment-Debtor,,,,,,

In the event of the judgment-debtorâ€s default to file the affidavit of assets, Order XXI Rule 41(3) of the Code of Civil Procedure empowers the Court to detain",,,,,,

the judgment-debtor in civil prison for up to three months. Order XXI Rule 41(3) of the Code of Civil Procedure is reproduced below: -,,,,,,

“Order XXI Rule 41(3),,,,,,

(3) In case of disobedience of any order made under sub-rule (2), the Court making the order, or any Court to which the proceeding is transferred,",,,,,,

may direct that the person disobeying the order be detained in the civil prison for a term not exceeding three month unless before the expiry of such,,,,,,

terms the Court directs his release.â€​,,,,,,

Arrest and Detention of the Judgment-Debtor,,,,,,

Sections 51(c), 55 to 59 and Order XXI Rules 37 to 40 of the Code of Civil Procedure prescribe the procedure to be followed for detention of the judgment-",,,,,,

debtor in the civil prison. Section 55 contains the provision relating to arrest and detention; Section 56 contains the provision relating to prohibition of arrest and,,,,,,

detention of women; Section 58 contains the provision relating to duration of detention and release; Section 59 contains the provision relating to release on the,,,,,,

ground of illness; Order XXI Rule 37 contains provision for show cause notice to the judgment-debtor against detention in the civil prison; Order XXI Rule 38,,,,,,

contains the provision relating to warrants of arrest to the judgment-debtor; Section 57 and Order XXI Rule 39 contains the provisions relating to subsistence,,,,,,

allowance for the judgment-debtor and Order XXI Rule 40 contains the provision relating to proceedings on appearance of the judgment-debtor.,,,,,,

Attachment of Property in Execution of Decrees,,,,,,

Sections 51(b), 60 to 64 and Order XXI Rules 41 to 57 of the Code of Civil Procedure contain provisions for attachment of properties in execution of decrees.",,,,,,

Section 60 gives the list of properties which are liable to attachment and sale whereas the Proviso to Sub-Section (1) of Section 60 gives the list of properties,,,,,,

which are exempted from attachment or sale. Section 60 of the Code of Civil Procedure is reproduced hereunder:,,,,,,

“Section 60 - Property liable to attachment and sale in execution of decree.,,,,,,

(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-",,,,,,

notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a",,,,,,

corporation and save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which,",,,,,,

or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-",,,,,,

debtor or by another person in trust for him or on his behalf:,,,,,,

Provided that the following particulars shall not be liable to such attachment or sale, namely:â€"",,,,,,

(a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments",,,,,,

as, in accordance with religious usage, cannot be parted with by any woman;",,,,,,

(b) tools of artisans, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the",,,,,,

opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of",,,,,,

agricultural produce as may have been declared to be free from liability under the provisions of the next following section;,,,,,,

(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their,,,,,,

enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him;,,,,,,

(d) books of account;,,,,,,

(e) a mere right to sue for damages;,,,,,,

(f) any right of personal service;,,,,,,

(g) stipends and gratuities allowed to pensioners of the Government or of a local authority or of any other employer, or payable out of any service",,,,,,

family pension fund notified in the Official Gazette by the Central Government or the State Government in this behalf, and political pensions;",,,,,,

(h) the wages of labourers and domestic servants, whether payable in money or in kind;",,,,,,

(i) salary to the extent of the first one thousand rupees and two-thirds of the remainder in execution of any decree other than a decree for,,,,,,

maintenance:,,,,,,

Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or",,,,,,

intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve",,,,,,

months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total",,,,,,

period of twenty-four months, be finally exempt from attachment in execution of that decree;",,,,,,

(ia) one-third of the salary in execution of any decree for maintenance;,,,,,,

(j) the pay and allowances of persons to whom the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of",,,,,,

1957), applies;",,,,,,

(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 1925 (19 of 1925), for the time being",,,,,,

applies in so far as they are declared by the said Act not to be liable to attachment;,,,,,,

(ka) all deposits and other sums in or derived from any fund to which the Public Provident Fund Act, 1968 (23 of 1968), for the time being applies, in",,,,,,

so far as they are declared by the said Act as not to be liable to attachment;,,,,,,

(kb) all moneys payable under a policy of insurance on the life of the judgment-debtor;,,,,,,

(kc) the interest of a lessee of a residential building to which the provisions of law for the time being in force relating to control of rents and,,,,,,

accommodation apply;,,,,,,

l) any allowance forming part of the emoluments of any servant of the Government] or of any servant of a railway company or local authority which,,,,,,

the appropriate Government may by notification in the Official Gazette declare to be exempt from attachment, and any subsistence grant or allowance",,,,,,

made to any such servant while under suspension;,,,,,,

(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest;,,,,,,

(n) a right to future maintenance;,,,,,,

(o) any allowance declared by any Indian law to be exempt from liability to attachment or sale in execution of a decree; and,,,,,,

(p) where the judgment-debtor is a person liable for the payment of land-revenue, any movable property which, under any law for the time being",,,,,,

applicable to him, is exempt from sale for the recovery of an arrear of such revenue.",,,,,,

Explanation I.â€"The moneys payable in relation to the matters mentioned in clauses (g), (h), (i), (ia), (j), (l) and (o) are exempt from attachment or",,,,,,

sale, whether before or after they are actually payable, and, in the case of salary, the attachable portion thereof is liable to attachment, whether",,,,,,

before or after it is actually payable.,,,,,,

Explanation II.â€"In clauses (i) and (ia), “salaryâ€​ means the total monthly emoluments, excluding any allowance declared exempt from attachment",,,,,,

under the provisions of clause (l), derived by a person from his employment whether on duty or on leave.",,,,,,

Explanation III.â€"In clause (I) “appropriate Governmentâ€​ meansâ€",,,,,,

(i) as respects any person in the service of the Central Government, or any servant of a Railway Administration or of a cantonment authority or of the",,,,,,

port authority of a major port, the Central Government;",,,,,,

(ii) [***],,,,,,

(iii) as respects any other servant of the Government or a servant of any other local authority, the State",,,,,,

Explanation IV.â€"For the purposes of this proviso, “wages†includes bonus, and “labourer†includes a skilled, unskilled or semi-skilled",,,,,,

labourer.,,,,,,

Explanation V.â€"For the purposes of this proviso, the expression “agriculturist†means a person who cultivates land personally and who",,,,,,

depends for his livelihood mainly on the income from agricultural land, whether as owner, tenant, partner or agricultural labourer.",,,,,,

Explanation VI.â€"For the purposes of Explanation V, an agriculturist shall be deemed to cultivate land personally, if he cultivates landâ€"",,,,,,

(a) by his own labour, or",,,,,,

(b) by the labour of any member of his family, or",,,,,,

(c) by servants or labourers on wages payable in cash or in kind (not being as a share of the produce), or both. (1-A) Notwithstanding anything",,,,,,

contained in any other law for the time being in force, an agreement by which a person agrees to waive the benefit of any exemption under this",,,,,,

section shall be void.,,,,,,

(2) Nothing in this section shall be deemed to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately,,,,,,

appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or",,,,,,

land.â€​,,,,,,

Section 30 of the Code of Civil Procedure - Power to order discovery,,,,,,

Section 30 of Code of Civil Procedure empowers the Court, either on its own or on the application of any party, to make such orders as may be for necessary for",,,,,,

the admission of documents and facts, discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;",,,,,,

and any fact to be proved by affidavit. Section 30 of the Code of Civil Procedure reads as under:,,,,,,

“Section 30 - Power to order discovery and the like,,,,,,

Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any",,,,,,

party,â€"",,,,,,

(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of",,,,,,

documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as",,,,,,

evidence;,,,,,,

(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;,,,,,,

(c) order any fact to be proved by affidavit.â€​,,,,,,

Section 106 of the Indian Evidence Act - Burden of disclosing the assets,,,,,,

The assets and income of a judgment-debtor are within his personal knowledge and Section 106 of the Indian Evidence Act casts the burden on him to disclose,,,,,,

his assets and income. Section 106 of the Indian Evidence Act reads as under:,,,,,,

“Section 106 - Burden of proving fact especially within knowledge â€",,,,,,

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.â€​",,,,,,

Section 165 of the Indian Evidence Act - Judge’s Power to put questions and order production,,,,,,

It is the duty of the Court to ascertain the truth and then, do justice on the basis of the truth. Section 165 of the Indian Evidence Act, 1872 invests the Judge with",,,,,,

plenary powers to put any question to any witness or party; in any form, at any time, about any fact relevant or irrelevant. Section 165 is intended to arm the",,,,,,

Judge with the most extensive power possible for the purpose of finding the truth. The effect of this Section is that in order to get to the bottom of the matter,,,,,,

before it, the Court will be able to look at and inquire into every fact and thus, possibly acquire valuable indicative evidence which may lead to other evidence",,,,,,

strictly relevant and admissible. The Court is not, however, permitted to base its judgment on any, but only on relevant statements. Section 165 of the Indian",,,,,,

Evidence Act, 1872 reads as under:",,,,,,

“Section 165 - Judge’s power to put questions or order production,,,,,,

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness,",,,,,,

or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their",,,,,,

agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon",,,,,,

any answer given in reply to any such question:,,,,,,

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:",,,,,,

Provided also that this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which such,,,,,,

witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the question were asked or the document were",,,,,,

called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or,,,,,,

149 ; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.â€​",,,,,,

In Ved Parkash Kharbanda v. Vimal Bindal, (2013) 198 DLT 555, this Court discussed the meaning of “Truth†and how to discover it. This Court",,,,,,

considered Ram Chander v. State of Haryana, (1981) 3 SCC 191, Ritesh Tewari v. State of Uttar Pradesh, (2010) 10 SCC 677, Zahira H. Sheikh v. State of",,,,,,

Gujarat, (2004) 4 SCC 158, State of Rajasthan v. Ani, (1997) 6 SCC 162, Mohanlal Shamji Soni v. Union of India, 1991 Supp. (1) SCC 271, Jamatraj Kewalji",,,,,,

Govani v. State of Maharashtra, AIR 1968 SC 178, Sessions Judge, Nellore Referring Officer v. Intha Ramana Reddy, 1972 CriLJ 1485 with respect to the",,,,,,

scope of the power under Section 165 of the Indian Evidence Act.,,,,,,

Delhi High Court Rules for Execution of Decrees,,,,,,

The Delhi High Court Rules for execution of decrees [Volume I of High Court Rules and Orders, Part C, Chapter 12 â€" Part A â€" “Generalâ€] provides",,,,,,

for expeditious disposal of the execution cases by District Courts. Rule 2 provides at least one day every week to be reserved for execution work to ensure,,,,,,

expeditious disposal. Rules 4 and 5 provide for close supervision and control of the execution cases by the District Judge and report to the High Court in the,,,,,,

event of any delay in the disposal of execution cases. Rules 2, 4 and 5 of Volume I of High Court Rules and Orders, Part C, Chapter 12, Part A - General of",,,,,,

Delhi High Court Rules are reproduced hereunder:,,,,,,

“CHAPTER 12,,,,,,

Execution of Decrees,,,,,,

Part A - GENERAL,,,,,,

Special Day To Be Reserved For Execution Work,,,,,,

Execution of decrees should receive the same attention from the Courts as original civil work and should be methodically and regularly dealt with, as",,,,,,

expeditiously as possible. Where parties have to be heard or evidence recorded in the course of execution proceedings, notice should be given,",,,,,,

processes issued and dates fixed as in the case of original suits. As a rule one day during the week should be reserved for execution works so as to,,,,,,

ensure proper attention being paid to it; some times two days are necessary. District Judges are responsible for seeing that proper arrangements are,,,,,,

made for execution work by all courts subordinate to them.,,,,,,

xxx xxx xxx,,,,,,

Distribution Of Execution Work By District Judge,,,,,,

District Judges should record standing orders regulating the distribution of applications for the execution of decrees among the Courts subordinate to,,,,,,

them, providing for the disposal of cases in which decrees were passed by officers who have ceased to be attached to the district, and for carrying on",,,,,,

the execution proceedings already pending before such officers at the time of their ceasing to be employed therein. In framing such orders, every",,,,,,

Court should be required as far as possible, to execute all decrees passed by itself; but, where this is not possible and it is necessary to send the",,,,,,

decree to another Court for execution, care should be taken to see that it is a Court of competent jurisdiction [Section 39(2)]. Court shall demand to",,,,,,

be a Court of Competent jurisdiction, if at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try",,,,,,

the suit in which such decree was passed [Section 39(3) added by Amending Act, 1976].",,,,,,

District Judge To See That Execution Work Is not Neglected,,,,,,

In Lower Courts,,,,,,

Close supervision and control should be exercised by District Judges over the execution of degree business pending in all Courts subordinate to them;,,,,,,

and where any officer is found habitually to neglect this branch of work or to dispose of it in a perfunctory manner, he should be reported to the",,,,,,

High Court.â€​,,,,,,

Truth should be the Guiding Star in the Entire Judicial Process,,,,,,

It is the duty of the Court to ascertain the true assets and income of the judgment-debtor. Truth is the foundation of justice. Dispensation of justice, based on",,,,,,

truth, is an essential feature in the justice delivery system. People would have faith in Courts when truth alone triumphs. The justice based on truth would",,,,,,

establish peace in the society.,,,,,,

Krishna Iyer, J. in Jasraj Inder Singh v. Hemraj Multanchand, (1977) 2 SCC 155 described truth and justice as under:",,,,,,

“8. …Truth, like song, is whole, and half-truth can be noise! Justice is truth, is beauty and the strategy of healing injustice is discovery of the",,,,,,

whole truth and harmonising human relations. Law's finest hour is not in meditating on abstractions but in being the delivery agent of full fairness.,,,,,,

This divagation is justified by the need to remind ourselves that the grammar of justice according to law is not little litigative solution of isolated,,,,,,

problems but resolving the conflict in its wider bearings.â€​,,,,,,

(Emphasis Supplied),,,,,,

In Union Carbide Corporation v. Union of India, (1989) 3 SCC 38, the Supreme Court described justice and truth to mean the same. The observations of the",,,,,,

Supreme Court are as under:,,,,,,

“30. …when one speaks of justice and truth, these words mean the same thing to all men whose judgment is uncommitted. Of Truth and Justice,",,,,,,

Anatole France said:,,,,,,

“Truth passes within herself a penetrating force unknown alike to error and falsehood. I say truth and you must understand my meaning. For the,,,,,,

beautiful words Truth and Justice need not be defined in order to be understood in their true sense. They bear within them a shining beauty and a,,,,,,

heavenly light. I firmly believe in the triumph of truth and justice. That is what upholds me in times of trial....â€​,,,,,,

(Emphasis Supplied),,,,,,

In Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271, the Supreme Court observed that the presiding officer of a Court should not simply sit as",,,,,,

a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost. The presiding officer has a legal duty of his,,,,,,

own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice.",,,,,,

In Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421, the Supreme Court observed that to enable the Courts to ward off unjustified interference in",,,,,,

their working, those who indulge in immoral acts like perjury, pre-variation and motivated falsehoods have to be appropriately dealt with, without which it would",,,,,,

not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it with the hope that truth would ultimately,,,,,,

prevail. People would have faith in Courts when they would find that truth alone triumphs in Courts.,,,,,,

In Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374, the Supreme Court observed that right from the inception of the judicial system it has",,,,,,

been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice.",,,,,,

In Himanshu Singh Sabharwal v. State of Madhya Pradesh, (2008) 3 SCC 602, the Supreme Court held that the trial should be a search for the truth and not",,,,,,

about over technicalities. The Supreme Courtâ€​s observations are as under:,,,,,,

“5. …………… 31. In 1846, in a judgment which Lord Chancellor Selborne would later describe as “one of the ablest judgments of one of",,,,,,

the ablest judges who ever sat in this Courtâ€, Vice-Chancellor Knight Bruce said [Pearse v. Pearse, (1846) 1 De G&Sm. 12 : 16 LJ Ch 153 : 63 ER",,,,,,

950 : 18 Digest (Repl.) 91, 748] : (De G&Sm. pp. 28-29):",,,,,,

“31. The discovery and vindication and establishment of truth are main purposes certainly of the existence of courts of justice; still, for the",,,,,,

obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or",,,,,,

creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I",,,,,,

suppose, the most weighty objection to that mode of examination,... Truth, like all other good things, may be loved unwiselyâ€"may be pursued too",,,,,,

keenlyâ€"may cost too much.,,,,,,

xxx xxx xxx,,,,,,

Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justiceâ€"often referred to,,,,,,

as the duty to vindicate and uphold the “majesty of the lawâ€​.â€​,,,,,,

(Emphasis Supplied),,,,,,

In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370, the Supreme Court again highlighted the significance of truth and",,,,,,

observed that the truth should be the guiding star in the entire legal process and it is the duty of the Judge to discover the truth to do complete justice. The,,,,,,

Supreme Court further stressed that the Judge has to play an active role to discover the truth and he should explore all avenues open to him in order to discover,,,,,,

the truth. The Supreme Court observed as under:,,,,,,

“32. In this unfortunate litigation, the Court's serious endeavour has to be to find out where in fact the truth lies.",,,,,,

The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has,,,,,,

been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the,,,,,,

truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is",,,,,,

based on the foundation of the truth.,,,,,,

xxx xxx xxx,,,,,,

What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial,,,,,,

system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of",,,,,,

justice.,,,,,,

xxx xxx xxx,,,,,,

Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone,,,,,,

should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain,,,,,,

the truth.â€​,,,,,,

(Emphasis Supplied),,,,,,

False Claims and Defences,,,,,,

The greatest challenge before the judiciary today is the frivolous litigation. The judicial system in the country is choked with false claims and such litigants are,,,,,,

consuming Courts†time for a wrong cause. False claims are a huge strain on the judicial system. False pleas are often taken and forged documents are filed,,,,,,

indiscriminately in the Courts. The reluctance of the Courts to order prosecution encourages the litigants to raise false claims before the Court.,,,,,,

In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370, the Supreme Court observed that false claims and defences are",,,,,,

serious problems. The Supreme Court held as under: -,,,,,,

“False claims and false defences,,,,,,

False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation",,,,,,

pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with,,,,,,

them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this",,,,,,

problem can be minimized to a large extent.,,,,,,

In Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470, the Supreme Court observed that the Indian judicial system is grossly afflicted with frivolous",,,,,,

litigation. Relevant portion of the said judgment is as under:,,,,,,

“191. The Indian judicial system is grossly afflicted, with frivolous litigation. Ways and means need to be evolved, to deter litigants from their",,,,,,

compulsive obsession, towards senseless and ill-considered claims.â€​",,,,,,

(Emphasis Supplied),,,,,,

Consequences of Making a False Claim in Court,,,,,,

Section 209 of the Indian Penal Code provides an effective mechanism to curb the menace of frivolous litigation. Section 209 of the Indian Penal Code,,,,,,

provides that dishonestly making a false claim in a Court is an offence punishable with punishment of imprisonment upto two years and fine. Section 209 of the,,,,,,

Indian Penal Code is reproduced hereunder:,,,,,,

“Section 209 - Dishonestly making false claim in Court â€",,,,,,

Whoever fraudulently or dishonestly, or with intent to injure or annoy any person, makes in a Court of Justice any claim which he knows to be false,",,,,,,

shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.â€​",,,,,,

Section 209 of the Indian Penal Code, is a salutary provision enacted to preserve the sanctity of the Courts and to safeguard the administration of law by",,,,,,

deterring the litigants from making the false claims. However, this provision has been seldom invoked by the Courts. The disastrous result of not invoking Section",,,,,,

209 is that the litigants indulge in false claims because of the confidence that no action will be taken.,,,,,,

The judicial system has to protect itself from such wrongdoing by taking cognizance, directing prosecution, and punishing those found guilty. In H.S. Bedi v.",,,,,,

National Highway Authority of India, 2016 (227) DLT 129, this Court examined the scope of Section 209 of the Indian Penal Code.",,,,,,

Restitution,,,,,,

One major incentive for the obstruction and delay of execution proceedings by the judgment-debtors is the ability to benefit by either tiring out the decree-,,,,,,

holders into giving up or coercing them to settle for less. This occurs because of the reluctance of the Executing Court to wield their power to order restitution.,,,,,,

Unless Courts disgorge all benefits that a party availed by obstruction or delays or non-compliance, there will always be incentive for non-compliance, and",,,,,,

parties are ingenious enough to come up with all kinds of pleas and other tactics to achieve their end.,,,,,,

Whatever benefits a person has had or could have had by not complying with the judgment must be disgorged and paid to the decree-holder. This is the,,,,,,

bounden duty and obligation of the Court.,,,,,,

In Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249, the Supreme Court recognised the inherent power of the Court to order restitution to do real",,,,,,

and substantive justice. Para 52 (G) of the judgment is reproduced hereunder:,,,,,,

“52. (G) The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.â€​,,,,,,

In Indian Council for Enviro-Legal Action v. Union of India, (2011) 8 SCC 161, the Supreme Court again recognised the inherent power of the Court to order",,,,,,

restitution. The Supreme Court held as under:,,,,,,

“148. The appellants must pay the amount is one thing but should they pay only that amount or something more? If the period were a few days or,,,,,,

months it would have been different but here it is almost 14 years that have lapsed and the amount has not been paid. The questions, therefore, are",,,,,,

really three:,,,,,,

Can a party who does not comply with the court order be permitted to retain the benefits of his own wrong of non-compliance?,,,,,,

Whether the successful party be not compensated by way of restitution for deprivation of its legitimate dues for more than fourteen years? and,,,,,,

Whether the Court should not remove all incentives for not complying with the judgment of the Court?,,,,,,

It is settled principle of law that no one can take advantage of his own wrong. Unless courts disgorge all benefits that a party availed by,,,,,,

obstruction or delays or non-compliance, there will always be incentive for non-compliance, and parties are ingenious enough to come up with all",,,,,,

kinds of pleas and other tactics to achieve their end because they know that in the end the benefit will remain with them.,,,,,,

Whatever benefits a person has had or could have had by not complying with the judgment must be disgorged and paid to the judgment-creditor,,,,,,

and not allowed to be retained by the judgment-debtor. This is the bounden duty and obligation of the court. In fact, it has to be looked at from the",,,,,,

position of the creditor. Unless the deprivation by reason of delay is fully restituted, the creditor as a beneficiary remains a loser to the extent of the",,,,,,

unrestituted amount.â€​,,,,,,

(Emphasis Supplied),,,,,,

In A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012) 6 SCC 430, the Supreme Court again",,,,,,

reiterated the principles relating to restitution. Relevant paras of the judgment are reproduced hereunder:,,,,,,

Restitution and Mesne Profits,,,,,,

Experience reveals that a large number of cases are filed on false claims or evasive pleas are introduced by the defendant to cause delay in the,,,,,,

administration of justice and this can be sufficiently taken care of if the courts adopt realistic approach granting restitution.,,,,,,

xxx xxx xxx,,,,,,

False averments of facts and untenable contentions are serious problems faced by our courts. The other problem is that litigants deliberately,,,,,,

create confusion by introducing irrelevant and minimally relevant facts and documents. The court cannot reject such claims, defences and pleas at the",,,,,,

first look. It may take quite some time, at times years, before the court is able to see through, discern and reach to the truth. More often than not, they",,,,,,

appear attractive at first blush and only on a deeper examination the irrelevance and hollowness of those pleadings and documents come to light.,,,,,,

Our courts are usually short of time because of huge pendency of cases and at times the courts arrive at an erroneous conclusion because of false,,,,,,

pleas, claims, defences and irrelevant facts. A litigant could deviate from the facts which are liable for all the conclusions. In the journey of",,,,,,

discovering the truth, at times, this Court, at a later stage, but once discovered, it is the duty of the court to take appropriate remedial and preventive",,,,,,

steps so that no one should derive benefits or advantages by abusing the process of law. The court must effectively discourage fraudulent and,,,,,,

dishonest litigants.,,,,,,

On the facts of the present case, the following principles emerge:",,,,,,

43.1. It is the bounden duty of the court to uphold the truth and do justice.,,,,,,

43.2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants",,,,,,

have no place in law courts.,,,,,,

43.3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations,,,,,,

before the court should be truthful.,,,,,,

43.4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition",,,,,,

to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrongdoer in the temple of justice. Truth is the,,,,,,

foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.,,,,,,

43.5. It is the bounden obligation of the court to neutralise any unjust and/or undeserved benefit or advantage obtained by abusing the judicial,,,,,,

process.,,,,,,

(Emphasis Supplied),,,,,,

Imposition of Costs,,,,,,

Imposition of actual and realistic costs in appropriate cases would go a long way in controlling the tendency of filing false cases.,,,,,,

S. No,Country,Place/ Authority,Statue/ Applicable Rules,"Form/Annexure

/Appendix/ Affidavit",Hyper Link,

1.,Australia,"Supreme Court & Magistrates

Court","Court Procedures Rules, 2006","Form 2.52-Statement

of enforcement

debtor's financial

position","1. https://www.legislation.act.g

ov.au/View/af/2006-

297/current/PDF/2006-

297.PDF",

2.,Australia,"Magistrates Court of Western

Australia","C i v i l Judgments Enforcement

Regulations, 2005

Part 4 - Enforcement of monetary

Judgments

Division 2 - Means inquiry Regulation 17","Statement of

financial affairs

Form 38 - Statement

of financial affairs

Form 38A - Statement

of Financial Affairs

Corporation

Form 38B - Affidavit

of Financial Affairs","1.

https://www.magistratescour

t.wa.gov.au/_files/CJE_For

m_38.pdf

2.

https://www.magistratescour

t.wa.gov.au/_files/CJE_For

m_38A.pdf

3.

https://www.magistratescour

t.wa.gov.au/_files/CJE_For

m_38B.pdf",

Australia Magistrates‟ Court of Victoria Magistrates' Court General Civil Judgment Debtor‟s 1.

Procedure Rules, 2010 Statement of Financial https://www.mcv.vic.gov.au/

Rules 72.02(4), Position â€" Individual sites/default/files/2018-

72.04(3), 72.05(5)(a) - Form 72C 10/Judgment-debtors-

Rule 67.01(3)(8) Judgment Debtor‟s statement-of-financial-

Statement of Financial position-Form-72C.pdf

Position â€" 2.

Corporation - Form https://www.mcv.vic.gov.au/

67C sites/default/files/2018-

10/Examination-of- judgment-

debtor- corporation-Form-

67C.pdf

Australia Supreme Court of Queensland Uniform Civil Procedure Rules 1999, Statement of 1.

Rule 807 Financial Position https://www.courts.qld.gov.a

Form 71, Version 3 u/__data/assets/word_doc/00

05/88421/form-071-

statement-of-financial-

position.doc

Australia New South Wales Civil Procedure Act, 2005 Uniform Civil Form - 51 Examination1. http://www.ucprforms.justice.

Procedure Rules, 2005 Notice - Individual nsw.gov.au/Documents/PDF/u

Part 38 - Examination of judgment debtorForm â€" 52 Examinationcpr_form_51_v3.pdf

etc. Notice - Corporation 2. http://www.ucprforms.justic

Rule 38.1 e.nsw.gov.au/Documents/PD

F/ucpr_form_53_v3.pdf

Ireland District Court (Civil Procedure) Rules, Order 51A, Rule 4 -1. http://www.courts.ie/rules.ns

2014 Schedule: C - Forms inf/53bd32841fc5bbf280256d

The Courts Services of Ireland Enforcement of Court Orders Act 1926,civil proceedings 2b0045bb5d/8bce12e357295

Part â€" II, Section 15(1) - Examinationo fForm: 51A.02 Statement52e80257c91005a71fa?Ope

Debtors of means nDocument

New New Zealand Ministry of Justice District Court Act, 2016 Financial Statement of1. https://www.justice.govt.nz/

Zealand Part 10 - Enforcement of judgments â€"judgment debtor assets/Documents/Forms/20 8w-

Sections 145 Individual - Form 36filing-a-statement-of- judgment-

â€" 153 MOJ36/05/14, debtor.pdf

District Court Rules, 2014 [Repealed] MOJ208/10/19 2. https://www.justice.govt.nz/

Part 19 - Enforcement â€" Rule 19.15 -Organization - Form 36aassets/Documents/Forms/Fin

19.19 MOJ36a/02/14, ancial-statement-individual-

MOJ208/10/19 form36.pdf

https://www.justice.govt.nz/

assets/Documents/Forms/20 9-

filing-a-statement-of- judgment-

debtor- organisation.pdf

https://www.justice.govt.nz/

assets/Documents/Forms/Fin

ancial-statement-company-

36a.pdf

Singapore Supreme Court of Singapore Supreme Court Practice Directions, 2013 Forms 11A -1. https://epd.supremecourt.go

[Last updated on 04th December, 2019] Examination of Judgmentv.sg/downloads/Appendix_

Debtor - Individual A/Form_11A.pdf

Part X: Enforcement of Judgments and

Orders Forms 11B -2. https://epd.supremecourt.go

Rule 80A. Examination of Judgment DebtorExamination of Judgmentv.sg/downloads/Appendix_

Debtor - Company A/Form_11B.pdf

Singapore The State Courts of Singapore, Examination of1. https://www.statecourts.gov.

Civil Justice Division Judgment debtor -sg/cws/CivilCase/Document

Toolkit s/Civil_Toolkit_EJD_17022

Forms 44 - Examination014.pdf

of Judgment Debtor -2. https://www.statecourts.gov.

Individual sg/cws/CivilCase/Document

Forms 45 - Examinations/PD07032014-AppB- Form44-

of Judgment Debtor - EJDQuestionairre.doc

Company

https://www.statecourts.gov.

sg/cws/CivilCase/Document

s/PD07032014-AppB- Form45

EJDQuestionairre.doc",3.,Australia,Magistrates‟ Court of Victoria,"Magistrates' Court General Civil

Procedure Rules, 2010

Rules 72.02(4),

72.04(3), 72.05(5)(a)

Rule 67.01(3)(8)","Judgment Debtor‟s

Statement of Financial

Position â€" Individual

- Form 72C

Judgment Debtor‟s

Statement of Financial

Position â€

Corporation - Form

67C","1.

https://www.mcv.vic.gov.au/

sites/default/files/2018-

10/Judgment-debtors-

statement-of-financial-

position-Form-72C.pdf

2.

https://www.mcv.vic.gov.au/

sites/default/files/2018-

10/Examination-of- judgment-

debtor- corporation-Form-

67C.pdf

,4.,Australia,Supreme Court of Queensland,"Uniform Civil Procedure Rules 1999,

Rule 807","Statement of

Financial Position

Form 71, Version 3","1.

https://www.courts.qld.gov.a

u/__data/assets/word_doc/00

05/88421/form-071-

statement-of-financial-

position.doc

,5.,Australia,New South Wales,"Civil Procedure Act, 2005 Uniform Civil

Procedure Rules, 2005

Part 38 - Examination of judgment debtor

etc.

Rule 38.1","Form - 51 Examination

Notice - Individual

Form â€" 52 Examination

Notice - Corporation",1. http://www.ucprforms.justice.

,,,,,,"nsw.gov.au/Documents/PDF/u

cpr_form_51_v3.pdf

http://www.ucprforms.justic

,,,,,,"e.nsw.gov.au/Documents/PD

F/ucpr_form_53_v3.pdf

,6.,Ireland,The Courts Services of Ireland,"District Court (Civil Procedure) Rules,

2014

Enforcement of Court Orders Act 1926

Part â€" II, Section 15(1) - Examinationo f

Debtors","Order 51A, Rule 4

Schedule: C - Forms in

,civil proceedings

Form: 51A.02 Statemen

of means",-1. http://www.courts.ie/rules.ns

,,,,,,"f/53bd32841fc5bbf280256d

2b0045bb5d/8bce12e357295

t52e80257c91005a71fa?Ope

nDocument

,7.,"New

Zealand",New Zealand Ministry of Justice,"District Court Act, 2016

Part 10 - Enforcement of judgments â€

Sections 145

â€" 153

District Court Rules, 2014 [Repealed]

Part 19 - Enforcement â€" Rule 19.15

19.19","Financial Statement of

judgment debtor

Individual - Form 36

MOJ36/05/14,

MOJ208/10/19

-Organization - Form 36a

MOJ36a/02/14,

MOJ208/10/19",1. https://www.justice.govt.nz/

,,,,,,assets/Documents/Forms/20 8w-

,,,,,,filing-a-statement-of- judgment-

,,,,,,"debtor.pdf

https://www.justice.govt.nz/

,,,,,,"assets/Documents/Forms/Fin

ancial-statement-individual-

form36.pdf

https://www.justice.govt.nz/

,,,,,,assets/Documents/Forms/20 9-

,,,,,,filing-a-statement-of- judgment-

,,,,,,"debtor- organisation.pdf

https://www.justice.govt.nz/

,,,,,,"assets/Documents/Forms/Fin

ancial-statement-company-

36a.pdf

,8.,Singapore,Supreme Court of Singapore,"Supreme Court Practice Directions, 2013

[Last updated on 04th December, 2019]

Part X: Enforcement of Judgments an

Orders

Rule 80A. Examination of Judgment Debtor","Forms 11A -

Examination of Judgment",1. https://epd.supremecourt.go

,,,,,,"v.sg/downloads/Appendix_

A/Form_11A.pdf

https://epd.supremecourt.go

,,,,,"Debtor - Individual

d

Forms 11B -

Examination of Judgment",

,,,,,,"v.sg/downloads/Appendix_

A/Form_11B.pdf

,,,,,Debtor - Company,

,9.,Singapore,"The State Courts of Singapore

Civil Justice Division",",","Examination of

Judgment debtor -",1. https://www.statecourts.gov.

,,,,,,"sg/cws/CivilCase/Document

s/Civil_Toolkit_EJD_17022

014.pdf

https://www.statecourts.gov.

,,,,,"Toolkit

Forms 44 - Examination",

,,,,,of Judgment Debtor -,

,,,,,"Individual

Forms 45 - Examination","sg/cws/CivilCase/Document

s/PD07032014-AppB- Form44-

,,,,,"of Judgment Debtor -

Company","EJDQuestionairre.doc

https://www.statecourts.gov.

,,,,,,"sg/cws/CivilCase/Document

s/PD07032014-AppB- Form45

,,,,,,EJDQuestionairre.doc

U.K. Her Majesty's Courts and Civil Procedure Rules, 1998 Appendix A - Form1. https://assets.publishing.serv

Tribunals Service PART 71 - Orders to EX140: Record ofice.gov.uk/government/uplo

(HMCTS) Obtain Information from Judgment Debtors evidence (individualads/system/uploads/attachm

debtor) ent_data/file/688117/ex140-

 County Courts‟ Practice Direction Part 71 Appendix B - Formeng.pdf

â€" Orders to Obtain Information fromEX141 : Record of

Judgment Debtors evidence (Officer of a2. https://assets.publishing.serv

company ice.gov.uk/government/uplo

Rule 71.6 of Orders to ObtainForm N316: Apply for anads/system/uploads/attachm

Information from Judgment Debtors Paraorder for a debtor toent_data/file/688119/ex141-

(4.1) of Practice Direction Part 71 â€"attend court eng.pdf

Orders to Obtain Form N316A:

Information From Application for order that3. https://assets.publishing.serv

officer of the debtorice.gov.uk/government/uplo

company attend court forads/system/uploads/attachm

questioning ent_data/file/688613/n316-

eng.pdf

https://assets.publishing.serv

ice.gov.uk/government/uplo

ads/system/uploads/attachm

ent_data/file/688616/n316a-

eng.pdf

Canada Court of Queen‟s Bench of Civil Enforcement Act Form 13 - Financial1. https://albertacourts.ca/docs/

Alberta Civil Enforcement Regulation Statement of Debtordefault- source/qb/form14.doc?

(Individual Debtor) sfvrs n=2a82ad80_0

Alberta Regulation 276/1995 With

amendments up to and including Alberta Form 14 - Financial2. https://albertacourts.ca/docs/

Regulation 221/2017 Statement of Debtordefault- source/qb/form14.doc?

(Corporate Debtor) sfvrs n=2a82ad80_0

Canada Ontario Ontario Regulation 258/98: Rules of the Form 20I Ontario1. http://www.ontariocourtform

Small Claims Court under Courts of JusticeRegulation s.on.ca/forms/scc/20i/SCR- 20I-

Act, R.S.O. 258/98 Jan14-fil-EN.doc

1990, c. C.43

Republic of Department of Justice and Magistrates' Courts Act 32 of 1944 - Form No. 451. https://www.justice.gov.za/f

South AfricaConstitutional Development Section 65I(2) & 74A Statement of Affairs oforms/MCR/J927-form45.pdf

Debtor

Republic of Johannesburg Central The National Credit Act 34 OF 2005 Form B - Statement of1. https://www.justice.gov.za/

South AfricaMagistrate‟s Court Civil Section Section 86(7)(c) Affairs of Debtor mc/mcjhb/form-B.pdf

U.S.A. Minnesota Judicial Branch, 4th Minnesota Statutes Civil Procedure Financial Disclosure1. http://www.mncourts.gov/m

Judicial District Minnesota Form ncourtsgov/media/CourtFor

Statutes 2012, sections 491A.02, subdivision ms/JGM301.doc?ext=.doc

9; 550.011

U.S.A. The 16th Judicial District, Small Claims Financial Statement of1 . http://www.kscourts.org/dstc

Debtor ts/16scjdsa.pdf

District Court of County, Kansas

U.S.A. Administrative Office of the U.S. Form No. CJA 231. https://www.uscourts.gov/sit

Courts Financial Affidavit es/default/files/cja23.pdf

U.S.A. Judicial Council of California Code of Civil Procedure, Part 1. of Judgment Debtor1 . https://www.courts.ca.gov/d

Courts of Justice, Title 1. Statement of Assets ocuments/sc133.pdf

Organization & Jurisdiction, Chapter 5.5.

Small Claims Court, Article 8. Satisfaction

and Enforcement of Judgment.

Sections 116.620(a), 116.830

U.S.A. Michigan Courts Michigan Compiled Laws MCL 600.6001 Financial Statement 1. https://courts.michigan.gov/

et seq., Administration/SCAO/Form

MCR 600.8410 in small s/courtforms/mc287.pdf

claims cases only, and MCR 2.621.

Revised Judicature Act of 1961

U.S.A. United States District Court, General Statutes of Connecticut Financial Affidavit 1. https://www.jud.ct.gov/webf

District of Connecticut Volume- 13, Title 52-Civil Actions, Chapters orms/forms/fm006-long.pdf

906-

Post Judgments Procedure, Section 52-397",10.,U.K.,"Her Majesty's Courts and

Tribunals Service

(HMCTS)

 County Courts‟","Civil Procedure Rules, 1998

PART 71 - Orders to

Obtain Information from Judgment Debtors

Practice Direction Part 71

â€" Orders to Obtain Information from

Judgment Debtors

Rule 71.6 of Orders to Obtain

Information from Judgment Debtors Para

(4.1) of Practice Direction Part 71 â€

Orders to Obtain

Information From","Appendix A - Form

EX140: Record o",1. https://assets.publishing.serv

,,,,,,"fice.gov.uk/government/uplo

ads/system/uploads/attachm

ent_data/file/688117/ex140-

eng.pdf

f

https://assets.publishing.serv

,,,,,evidence (individual,

,,,,,"debtor)

Appendix B - Form",

,,,,,EX141 : Record o,

,,,,,evidence (Officer of a,

,,,,,"company

Form N316: Apply for an","ice.gov.uk/government/uplo

ads/system/uploads/attachm

ent_data/file/688119/ex141-

eng.pdf

:

https://assets.publishing.serv

,,,,,order for a debtor to,

,,,,,"attend court

Form N316A",

,,,,,Application for order that,

,,,,,officer of the debtor,"ice.gov.uk/government/uplo

ads/system/uploads/attachm

ent_data/file/688613/n316-

eng.pdf

https://assets.publishing.serv

,,,,,company attend court for,

,,,,,questioning,

,,,,,,"ice.gov.uk/government/uplo

ads/system/uploads/attachm

ent_data/file/688616/n316a-

eng.pdf

,11.,Canada,"Court of Queen‟s Bench o

Alberta","f Civil Enforcement Act

Civil Enforcement Regulation

Alberta Regulation 276/1995 With

amendments up to and including Alberta

Regulation 221/2017","Form 13 - Financia

Statement of Debtor

(Individual Debtor)

Form 14 - Financia

Statement of Debtor

(Corporate Debtor)",l1. https://albertacourts.ca/docs/

,,,,,,default- source/qb/form14.doc?

,,,,,,"sfvrs n=2a82ad80_0

l2. https://albertacourts.ca/docs/

,,,,,,default- source/qb/form14.doc?

,,,,,,sfvrs n=2a82ad80_0

,12.,Canada,Ontario,"Ontario Regulation 258/98: Rules of the

Small Claims Court under Courts of Justic","Form 20I Ontario

eRegulation

258/98",1. http://www.ontariocourtform

,,,,,,s.on.ca/forms/scc/20i/SCR- 20I-

,,,,"Act, R.S.O.

1990, c. C.43",,Jan14-fil-EN.doc

,13.,"Republic of

South Africa","Department of Justice and

Constitutional Development","Magistrates' Courts Act 32 of 1944 -

Section 65I(2) & 74A","Form No. 45

Statement of Affairs of

Debtor",1. https://www.justice.gov.za/f

,,,,,,orms/MCR/J927-form45.pdf

,14.,"Republic of

South Africa","Johannesburg Centra

Magistrate‟s Court Civil Section","l The National Credit Act 34 OF 2005

Section 86(7)(c)","Form B - Statement o

Affairs of Debtor",f1. https://www.justice.gov.za/

,,,,,,mc/mcjhb/form-B.pdf

,15.,U.S.A.,"Minnesota Judicial Branch, 4th

Judicial District","Minnesota Statutes Civil Procedure

Minnesota

Statutes 2012, sections 491A.02, subdivision

9; 550.011","Financial Disclosure

Form",1. http://www.mncourts.gov/m

,,,,,,"ncourtsgov/media/CourtFor

ms/JGM301.doc?ext=.doc

,16.,U.S.A.,"District Court of County, Kansas","The 16th Judicial District, Small Claims","Financial Statement of

Debtor",1 . http://www.kscourts.org/dstc

,,,,,,ts/16scjdsa.pdf

,17.,U.S.A.,"Administrative Office of the U.S

Courts",.,"Form No. CJA 2

Financial Affidavit",31. https://www.uscourts.gov/sit

,,,,,,es/default/files/cja23.pdf

,18.,U.S.A.,Judicial Council of California,"Code of Civil Procedure, Part 1. o

Courts of Justice, Title 1.

Organization & Jurisdiction, Chapter 5.5

Small Claims Court, Article 8. Satisfaction

and Enforcement of Judgment.

Sections 116.620(a), 116.830","f Judgment Debtor

Statement of Assets

.",1 . https://www.courts.ca.gov/d

,,,,,,ocuments/sc133.pdf

,19.,U.S.A.,Michigan Courts,"Michigan Compiled Laws MCL 600.600

et seq.,

MCR 600.8410 in small

claims cases only, and MCR 2.621.

Revised Judicature Act of 1961",1 Financial Statement,1. https://courts.michigan.gov/

,,,,,,"Administration/SCAO/Form

s/courtforms/mc287.pdf

,20.,U.S.A.,"United States District Court

District of Connecticut",", General Statutes of Connecticut

Volume- 13, Title 52-Civil Actions, Chapters

906-

Post Judgments Procedure, Section 52-397",Financial Affidavit,1. https://www.jud.ct.gov/webf

,,,,,,orms/forms/fm006-long.pdf

U.S.A. Commonwealth of Massachusetts Trial Court Rules Financial Statement of1. https://www.mass.gov/files/

Massachusetts Trial Court Rule III: Uniform Small ClaimJsudgment Debtor documents/2018/12/31/jud-

Rules financial-statement-of- judgment-

Uniform Small Claims Rule 9: Enforcement debtor.pdf

of Judgments

Sub Rule (c)

U.S.A. The Delaware Municipal Court, Ohio Revised Code, 1953 Title XIX Motion for Debtor1. http://www.municipalcourt.o

Delaware County, Ohio Courts - Municipal - Mayor's - County -Exam or Financialrg/wp- content/uploads/Debtor-

Chapter 1925: Small Claims Divisions -Disclosure (ProceedingExam-or-Financial- Disclosure-

Collecting & enforcing judgments - 1925.13in Aid of Execution -Application- for.pdf

(B) Small- Claims Court) RC

Section 1925.13

U.S.A Wisconsin Statutes (Small Claims) Sections 799.26, 812.34 & C-506B, 11/171. https://www.wicourts.gov/fo

812.39, Financial Disclosurermdisplay/SC- 506B.pdf?

Wisconsin Statutes Statement formNumber=SC-

506B&formType=Form&for

matId=2&language=en

U.S.A Florida Rules of Civil Procedure, Florida Rule of Civil1. https://www.15thcircuit.com

Discovery I Aid of Execution - Rule Procedure Form 1.977/sites/default/files/divisions/

Florida 1.560 (b),(c) (Fact Information Sheet)county-civil/rb/Civil- Procedure-

Rules-Updated-8- 4-2017.pdf

U.S.A New Jersey Courts Rules Governing the Courts of the State Civil Action1. https://njcourts.gov/forms/

Superior Court of New Jersey of New Jersey Information Subpoena 11840_infor_sub_written_

Process to Enforce Judgments - Orders forAppendix XI-L quest.pdf

Discovery; Information

Subpoenas - Rule 6:7-2 (b)

Conclusion

The execution of decrees/awards deserve special attention considering that inordinate delay in execution proceedings would frustrate the decree-holders from

reaping the benefits of the decrees/awards.

In execution proceedings, the Executing Court shall direct the judgment-debtor, at the first instance i.e. first date of filing, to file the affidavit of assets on the

date of cause of action, date of the decree/award as well as on the date of the swearing of the affidavit in Form 16A of Appendix E under Order XXI Rule 41(2)

of the Code of Civil Procedure within thirty days. The oral prayer/application of the decree-holder for issuance of such direction shall be sufficient compliance of

Order XXI Rule 41(2) of the Code of Civil Procedure.

The Executing Court is empowered, at the initial stage itself, to restrain the judgment-debtor from transferring, alienating or disposing of or otherwise parting

with the possession of any assets to the tune of the decretal/award amount except in the ordinary course of business such as payment of salary and statutory

dues. The Executing Court shall restrain the judgment-debtor from discharging any financial liability, other than the liabilities of Banks/financial institutions,

without the permission of the Executing Court.

If the judgment-debtor fails to appear before the Court upon service of notice, the Executing Court shall ensure his presence initially by issuing bailable

warrants and thereafter, by issuing non-bailable warrants as per law.

In the event of the default of the judgment-debtor to file the aforesaid affidavit within the stipulated time, the Executing Court shall consider detention of the

judgment-debtor in civil prison for the term not exceeding three months under Order XXI Rule 41(3) of the Code of Civil Procedure by directing the decree-

holder to deposit the subsistence allowance @ Rs.40 per day per person with the Executing Court for detention of the judgment-debtor. Upon deposit of the

subsistence allowance, the Executing Court shall issue non-bailable warrants against the judgment-debtor for his detention.

Since Form 16A of Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure is not exhaustive to ascertain all the assets of the decree-holder

this Court, in exercise of its powers under Sections 30 and

151 and Order XXI Rule 41 of the Code of Civil Procedure read with Sections 106 and 165 of the Indian Evidence Act and Article 227 of the Constitution o

India, has formulated following three affidavits: -

• Annexure A1 - Affidavit of assets and income of the judgment-debtor;

• Annexure B1 - Affidavit of assets and income of a proprietorship firm/partnership firm/HUF/company/trust as a judgment-debtor;

• Annexure C1 - Affidavit of expenditure of the judgment-debtor.

The aforesaid affidavits are very comprehensive and are useful to determine whether the judgment-debtor has the means to satisfy the decree/award. In the

aforesaid affidavits, the judgment-debtor is required to disclose his occupation and income from all sources in the last five years; particulars of immovable

properties in his name as well as joint names; financial assets including all bank accounts, DEMAT accounts, safety deposit lockers; investments including FDRs,

stocks, shares, insurance policies, loans, foreign investments; movable assets including motor vehicles, mobiles, computer, laptop, electronic gadgets, gold, silver

and diamond jewellery etc.; intangible assets; garnishee(s)/trade receivables; corporate/business interests; disposal and parting away of properties; properties

acquired by the family members, inheritance. A salaried judgment-debtor has to disclose the particulars of his employment including salary, D.A., commissions,

incentives, bonus, perks, perquisites and other benefits, Income Tax, pension and retirement benefits etc. A self-employed judgment-debtor has to disclose the

nature of business/profession, share in business/profession, net worth of the business, number of employees, amount of regular monthly withdrawals, Income Tax,

net income, annual turnover/gross receipts, gross profits etc. The judgment-debtor is also required to disclose the income from other sources, namely, agricultural

income, rent, interest on bank deposits and investments, dividends, profit on sale of movable/immovable assets, mutual funds, annuities etc. The judgment-debtor

is also required to disclose whether he has ever been arrested or kept in detention; whether any Court has issued bailable/non-bailable warrants against him;

whether he has ever been released on bail/anticipatory bail; whether he has ever been prosecuted and/or convicted; whether he has ever been declared as",21.,U.S.A.,"Commonwealth of

Massachusetts","Massachusetts Trial Court Rules

Trial Court Rule III: Uniform Small Claim

Rules

Uniform Small Claims Rule 9: Enforcemen

of Judgments

Sub Rule (c)","Financial Statement of

Jsudgment Debtor

t",1. https://www.mass.gov/files/

,,,,,,"documents/2018/12/31/jud-

financial-statement-of- judgment-

,,,,,,debtor.pdf

,22.,U.S.A.,"The Delaware Municipal Court

Delaware County, Ohio",", Ohio Revised Code, 1953 Title XI

Courts - Municipal - Mayor's - County

Chapter 1925: Small Claims Divisions -

Collecting & enforcing judgments - 1925.13

(B)","X Motion for Debtor

-Exam or Financia

Disclosure (Proceeding

in Aid of Execution -

Small- Claims Court) RC

Section 1925.13",1. http://www.municipalcourt.o

,,,,,,lrg/wp- content/uploads/Debtor-

,,,,,,Exam-or-Financial- Disclosure-

,,,,,,Application- for.pdf

,23.,U.S.A,Wisconsin Statutes,"(Small Claims) Sections 799.26, 812.34 &

812.39,

Wisconsin Statutes","C-506B, 11/17

Financial Disclosure

Statement",1. https://www.wicourts.gov/fo

,,,,,,rmdisplay/SC- 506B.pdf?

,,,,,,"formNumber=SC-

506B&formType=Form&for

matId=2&language=en

,24.,U.S.A,Florida,"Florida Rules of Civil Procedure

Discovery I Aid of Execution - Rule

1.560 (b),(c)",", Florida Rule of Civi

Procedure Form 1.977

(Fact Information Sheet)","l1. https://www.15thcircuit.com

/sites/default/files/divisions/

county-civil/rb/Civil- Procedure-

,,,,,,Rules-Updated-8- 4-2017.pdf

,25.,U.S.A,"New Jersey Courts

Superior Court of New Jersey","Rules Governing the Courts of the State

of New Jersey

Process to Enforce Judgments - Orders fo

Discovery; Information

Subpoenas - Rule 6:7-2 (b)","Civil Action

Information Subpoena

rAppendix XI-L",1. https://njcourts.gov/forms/

,,,,,,"11840_infor_sub_written_

quest.pdf

proclaimed offender/proclaimed person; particulars of all pending litigations, decided/disposed off litigations as well as unsatisfied decrees/awards. The judgment-",,,,,,

debtor is further required to disclose his standard of living and lifestyle, namely, credit/debit cards, membership of clubs and other associations, loyalty",,,,,,

programmes, social media accounts, domestic helps and their wages, mode of travel in city and outside city, category of hotels for stay, category of hospitals for",,,,,,

medical treatment, frequency of foreign travel, frequent flyer cards, brand of mobile, wrist watch, pen, expenditure ordinarily incurred on family functions,",,,,,,

festivals and marriage of family members, etc. Annexure C1 requires the disclosure of expenditure on housing, household expenditure, maintenance of",,,,,,

dependents, transport, medical expenditure, insurance, entertainment, holiday and vacations, litigation expenses, discharge of liabilities etc.",,,,,,

The Executing Court shall direct the judgment-debtor, at the initial stage itself, to file an affidavit of his assets and income in the format of Annexure A1 along",,,,,,

with documents mentioned therein within thirty days. If the judgment-debtor is a proprietor of a proprietorship firm/ partner of a partnership firm/member of an,,,,,,

HUF /Director/Promoter of a company/ Managing Trustee of a Trust, the judgment-debtor be directed to file an additional affidavit in respect of the assets and",,,,,,

income of the firm/HUF /Company/Trust, as the case may be, in the format of Annexure B1.",,,,,,

After examining Annexure A1, the Executing Court may direct the judgment-debtor to file an additional affidavit of his expenditure in the format of Annexure",,,,,,

C1.,,,,,,

If the judgment-debtor is a Firm/Company/HUF/Trust, the Executing Court shall direct the judgment-debtor to disclose its assets and income in the format of",,,,,,

Annexure B1 within 30 days. The affidavit of the Firm/ Company/HUF/Trust shall be sworn by all Partners/Directors/ Promoters (other than independent/non-,,,,,,

executive and nominee directors)/Members /Karta/ Trustees, as the case may be.",,,,,,

In pending execution cases, if the judgment-debtor has not already filed the affidavit of assets and income, the Executing Court shall direct the judgment-",,,,,,

debtor to file the affidavit of his assets and income in terms of this judgment.,,,,,,

If the facts of the case so require, the Executing Court may, in order to facilitate execution proceedings, direct the parties to make compilation/ extracts from",,,,,,

the accounts/other data and present the assets and income in a tabular form, duly supported by an affidavit.",,,,,,

If any ground for lifting of the corporate veil of a judgment-debtor company is made out as per law, then all the Directors/Promoters (other than",,,,,,

independent/non-executive and nominee directors) of the judgment-debtor Company shall be directed to disclose their personal assets and income in the format of,,,,,,

Annexure A1.,,,,,,

The Executing Court shall ensure that the filing of the affidavits by the judgment-debtor is not reduced to a mere ritual or formality. If the affidavits of the,,,,,,

judgment-debtor are not in the prescribed format or are not accompanied with the relevant documents, the Court may take the affidavits on record and grant",,,,,,

reasonable time to the judgment-debtor to remove the defects/deficiencies and simultaneously act on the information available in the deficient affidavit as per,,,,,,

law.,,,,,,

If any objections are filed raising claims such as HUF character or transfer, agreement to sell, mortgage, tenancy etc. to the property of the judgment-debtor",,,,,,

(as existing on the date of the institution of proceedings in which decree was passed), the Executing Court may direct the objector to file a detailed affidavit along",,,,,,

with all relevant documents evidencing his claim including subsequent conduct in relation thereto.,,,,,,

Upon filing of affidavit in Form 16A of Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure and the additional affidavits namely,,,,,,

Annexures A1, B1 and C1, the decree-holder shall verify the disclosures made in the affidavits, either himself or through an investigator. In appropriate cases,",,,,,,

the Executing Court may order investigation by a Government Agency including a forensic audit, cost of which shall be borne by the decree-holder.",,,,,,

If the judgment-debtor does not truly disclose all his assets and income, the decree-holder is at liberty to serve the interrogatories under Order XI of the Code",,,,,,

of Civil Procedure and/or seek production of relevant documents from the judgment-debtor.,,,,,,

In appropriate cases, Court may order interrogatories, discovery, inspection, production of any document and/or order any fact to be proved by affidavit under",,,,,,

Section 30 of Code of Civil Procedure.,,,,,,

The Executing Court shall, thereafter, consider whether the oral examination of the judgment-debtor is necessary under Section 165 of the Indian Evidence",,,,,,

Act. If the Executing Court consider it necessary, the Executing Court shall examine the judgment-debtor to elicit the truth. The principles relating to the scope",,,,,,

and powers of the Court under Section 165 of the Evidence Act have been summarized in Ved Parkash Kharbanda v. Vimal Bindal, (2013) 198 DLT 555, which",,,,,,

may be referred to.,,,,,,

Sections 51(b), 60 to 64 and Order XXI Rules 41 to 57 of the Code of Civil Procedure contain the provisions for attachment of properties in execution.",,,,,,

Before attaching a property, the Executing Court shall ensure that the property does not fall in the list of properties which are exempt from attachment/sale under",,,,,,

the Proviso to Section 60(1) of the Code of Civil Procedure. The Executing Court shall ensure the compliance of Sections 60 to 64 and Order XXI Rules 41 to 57,,,,,,

of the Code of Civil Procedure with respect to the attachment of properties in execution of decrees.,,,,,,

If the judgment-debtor does not satisfy the decree/award despite having means/capacity to pay, the decree-holder has to file an application for his detention",,,,,,

whereupon the Executing Court shall issue a show cause notice to the judgment-debtor to show cause as to why he should not be committed to civil prison. The,,,,,,

Executing Court shall, upon being satisfied that the judgment-debtor has means to pay the decretal amount or substantial part thereof and has refused or",,,,,,

neglected to pay the same, pass an order for detention of the judgment-debtor in civil prison for a period not exceeding three months in terms of Section 58(1)(a)",,,,,,

of the Code of Civil Procedure. Even after release from detention, the judgment-debtor shall remain liable to satisfy the decree/award in terms of Section 58(2)",,,,,,

of the Code of Civil Procedure. The Court shall follow the procedure laid down in Sections 51(c), 55 to 59 and Order XXI Rules 37 to 40 of the Code of Civil",,,,,,

Procedure for detention of the judgment-debtor.,,,,,,

In appropriate cases, the Executing Court may issue any of the following directions:- (i) Issue notice and direct the Garnishee(s) to deposit in Court the",,,,,,

amount due to the judgment-debtor as per law; (ii) Permit the decree-holder to inspect all the assets and the records of the judgment-debtor in the presence of,,,,,,

the Local Commissioner to be appointed by the Court; (iii) Direct the auditor of the judgment-debtor company to submit a report with respect to the affairs of the,,,,,,

judgment-debtor company; (iv) Permit the decree-holder to serve interrogatories on the auditors of the judgment-debtor; (v) Permit the decree-holder to inspect,,,,,,

the records of the judgment-debtor with the Income Tax and the other authorities to verify the disclosures made by the judgment-debtor; (vi) Appoint a receiver,,,,,,

in respect of the attached properties of the judgment-debtor and (vii) In extreme cases, appoint a Chartered Accountant as a Local Commissioner to inspect all",,,,,,

the records of the judgment-debtor and submit a report to the Court with respect to the affairs of the judgment-debtor.,,,,,,

The Executing Court shall pass appropriate order of restitution to reimburse the loss suffered by the decree-holder on account of delay and obstruction in the,,,,,,

execution proceedings caused by the judgment-debtor. The Executing Court shall endeavour to place the decree-holder in the same position as he would have,,,,,,

had been if the decree had been satisfied soon upon it being passed.,,,,,,

Imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency of introducing false claims by the",,,,,,

judgment-debtor. The cost should be equal to the benefits derived by the litigants, and the harm and deprivation suffered by the rightful person so as to check the",,,,,,

frivolous litigations and prevent the people from reaping a rich harvest of illegal acts through Court. The costs imposed by the Courts must be the real costs equal,,,,,,

to the deprivation suffered by the rightful person and also considering how long they have compelled the other side to contest and defend the litigation in various,,,,,,

courts. In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.",,,,,,

If the judgment-debtor makes a false claim/statement in his/her affidavit, the decree-holder is at liberty to invoke Section 340 Cr.P.C for prosecution of the",,,,,,

judgment-debtor under Section 209 of IPC. Whenever a false claim is made before a Court, it would be appropriate, in the first instance, to issue a show cause",,,,,,

notice to the judgment-debtor to show cause as to why a complaint be not made under Section 340 Cr.P.C. for having made a false claim under Section 209 of,,,,,,

the Indian Penal Code and a reasonable opportunity be afforded to the judgment-debtor to reply to the same. If the facts are sufficient to return a finding that an,,,,,,

offence appears to have been committed and it is expedient in the interests of justice to proceed to make a complaint under Section 340 Cr.P.C., the Court need",,,,,,

not order a preliminary inquiry. But if they are not and there is suspicion, albeit a strong one, the Court may order a preliminary inquiry. For that purpose, it can",,,,,,

direct the State agency to investigate and file a report along with such other evidence that they are able to gather. Once it prima facie appears that an offence,,,,,,

under Section 209 IPC has been made out and it is expedient in the interest of justice, the Court should not hesitate to make a complaint under Section 340",,,,,,

Cr.P.C. Reference be made to Sanjeev Kumar Mittal v. State, 174 (2010) DLT 214 for principles relating to Section 340 Cr.P.C and H.S. Bedi v. National",,,,,,

Highway Authority of India, 2016 (227) DLT 129 for principles relating to Section 209 IPC.",,,,,,

The directions contained in para 57 (vii) and (viii) of the judgment dated 05th December, 2019 with respect to the power of the Executing Court to restrain",,,,,,

the judgment-debtor from leaving the country without permission and to impound the passport of the judgment-debtor, are for the present, recalled. However, this",,,,,,

issue is kept pending and will be taken up for further hearing upon which appropriate orders would be passed.,,,,,,

These modified directions/guidelines shall apply to all execution proceedings, such as the execution proceedings under Section 36 of the Arbitration and",,,,,,

Conciliation Act; execution proceedings before Motor Accident Claims Tribunals; execution proceedings before the SDM empowered to execute decree/award,,,,,,

as arrears of land revenue; execution proceedings before Debt Recovery Tribunals and execution proceedings under Consumer Protection Act.,,,,,,

The affidavits formulated by this Court namely Annexures A1, B1 and C1 or such of the information from the affidavits as is considered necessary, can be",,,,,,

directed to be filed in any proceedings in which the Court considers it necessary to ascertain the financial capacity or status of a party such as proceedings under,,,,,,

Order XXXVIII of the Code of Civil Procedure and proceedings under Section 9 of the Arbitration and Conciliation Act. The Arbitral Tribunals are also,,,,,,

empowered to direct a party to file the aforesaid affidavits i.e. Annexures A1, B1 and C1 or such of the information from the affidavits as is considered",,,,,,

necessary, in the proceedings under Section 17 of the Arbitration and Conciliation Act to ascertain the financial capacity/status of a party.",,,,,,

The affidavit of assets, income, expenditure and liabilities is to be treated as guidelines to determine the true financial capacity/status of the judgment-debtor.",,,,,,

The Courts are at liberty to determine the nature and extent of information/documents necessary and to direct the judgment-debtor to disclose relevant,,,,,,

information and documents to determine the financial capacity/status. The Courts are at liberty to pass appropriate directions as may be considered necessary to,,,,,,

do complete justice between the parties.,,,,,,

The Courts below shall expedite the execution proceedings and shall make an endeavour to decide the execution cases within one year of institution. The,,,,,,

Courts below shall send the list of all pending execution cases which are more than one year old, through their District Judges. The list shall contain the name of",,,,,,

the case; date of institution; number of hearings that have taken place; whether the judgment-debtor has filed the affidavits in terms of the judgment dated 05th,,,,,,

December, 2019 and the reasons for delay in disposal. List be prepared according to the seniority i.e. the oldest case shall be mentioned first. The Courts below",,,,,,

shall also send a list of execution cases decided in the last one year. The District Judges shall compile the list of all its Courts and shall send them to the Registrar,,,,,,

General of this Court by 31st December, 2020 for being placed before this Court.",,,,,,

If any counsel/litigant has any further suggestions with respect to these directions, the same be submitted to this Court through the learned amici curiae, Mr.",,,,,,

Dayan Krishnan, Senior Advocate and Mr. Sanjiv Kakra, Advocate, or through the Honorary Secretary of the Delhi High Court Bar Association.",,,,,,

List for considering further suggestions, if any, on 06th November, 2020.",,,,,,

This Court appreciates the assistance rendered by Mr. Dayan Krishnan, Senior Advocate and Mr. Sanjiv Kakra, Advocate as amici curiae in formulating this",,,,,,

procedure. Mr. Rajiv Nayyar, Senior Advocate; Mr. Rajiv Virmani, Senior Advocate; Mr. Jayant Mehta, Advocate; and Mr. Percival Billimoria, Advocate have",,,,,,

also given valuable inputs. This Court also appreciates the extensive research on corresponding law in other countries by Mr. Akshay Chowdhary, Law",,,,,,

Researcher, attached to this Court.",,,,,,

This Court is of the view that the mandatory filing of the affidavit of assets, income, expenditure and liabilities by judgment-debtor in a detailed prescribed",,,,,,

form at the very threshold of execution litigation should be incorporated in the statutes, as in the developed countries. Let this suggestion be considered by the",,,,,,

Central Government. Copy of this judgment along with Annexures A1, B1 and C1 be sent to Mr. Chetan Sharma, learned ASG for taking up the matter with",,,,,,

Ministry of Law and Justice.,,,,,,

The modified directions and format of the affidavits (Annexures A1, B1 and C1) be uploaded on the website of the District Court (in .pdf format) to enable",,,,,,

the lawyers/litigants to download the same.,,,,,,

Copy of this judgment and modified format of affidavits of assets, income and expenditure Annexures A1, B1 and C1 be sent to the Registrar General of this",,,,,,

Court who shall circulate it to all the District Judges for being circulated to all the concerned courts.,,,,,,

Copy of this judgment be sent to Mr. Rahul Mehra, learned Standing Counsel for GNCTD who shall circulate it to all the SDMâ€s dealing with execution",,,,,,

cases as arrears of land revenue. The Principal Secretary (Revenue) shall ensure the compliance of these directions by all SDMs in execution cases.,,,,,,

Copy of the judgment along with Annexures A1, B1 and C1 be sent to the Delhi Judicial Academy to sensitize the judges about the modified directions laid",,,,,,

down by this Court.,,,,,,

National Judicial Academy is reporting the best practices of the High Courts on their website (www.nja.nic.in) under the head of Practices & Initiatives of,,,,,,

various High Courts. Copy of this judgment along with Annexures A1, B1 and C1 be sent to National Judicial Academy.",,,,,,

Declaration:,,,,,,

I declare that I have made accurate, true and complete disclosure of my income and assets from all sources. I further declare that I have no assets, income",,,,,,

or financial resources other than those set out in this affidavit.,,,,,,

I undertake to inform this Court immediately upon any material change in my income and assets or any other information disclosed in this affidavit.,,,,,,

I hereby declare that the contents of this affidavit have been duly explained to me and have been understood by me.,,,,,,

The copies of the documents filed with the affidavit are the true copies of the originals and I have self attested the copies after comparing them with their,,,,,,

originals.,,,,,,

I understand that any false statement and misrepresentation in this affidavit may constitute an offence under Section 199 read with Sections 191 and 193 of,,,,,,

the Indian Penal Code, 1860 punishable with imprisonment upto seven years and fine, and Section 209 of the Indian Penal Code, 1860 punishable with",,,,,,

imprisonment upto two years and fine. I have read and understood Sections 191, 193, 199 and 209 of the Indian Penal Code, 1860.",,,,,,

DEPONENT,,,,,,

Verification:,,,,,,

Verified at ____________ on this ____ day of ___________ that the contents of the above affidavit relating to my income and assets are true to my,,,,,,

knowledge, no part of it is false and nothing material has been concealed therefrom. I further verify that the copies of the documents filed along with the",,,,,,

affidavit are true copies of the originals.,,,,,,

DEPONENT,,,,,,

ANNEXURE B1,,,,,,

FORMAT OF AFFIDAVIT OF ASSETS AND INCOME OF THE,,,,,,

JUDGMENT-DEBTOR*,,,,,,

I/we_________________________, son of / daughter of wife of /_________________________, aged about ____ years, resident of",,,,,,

_____________________________, am/are the Proprietor/Directors/Promoters/Partners/Karta/Managing Trustee of the________________",,,,,,

__________________and I/we do hereby solemnly affirm and declare as under:,,,,,,

Declaration:,,,,,,

I/we declare that I/we have made accurate, true and complete disclosure of income and assets of the judgment-debtor from all sources. I/we further declare",,,,,,

that the judgment-debtor has no assets, income or financial resources other than those set out in this affidavit.",,,,,,

I/we undertake to inform this Court immediately upon any material change in the income and assets of the judgment-debtor or any other information,,,,,,

disclosed in this affidavit.,,,,,,

I/we hereby declare that the contents of this affidavit have been duly explained to me and have been understood by me.,,,,,,

The copies of the documents filed with the affidavit are the true copies of the originals and I/we have self attested the copies after comparing them with,,,,,,

their originals.,,,,,,

I/we understand that any false statement and misrepresentation in this affidavit may constitute an offence under Section 199 read with,,,,,,

Sections 191 and 193 of the Indian Penal Code, 1860 punishable with imprisonment upto seven years and fine, and Section 209 of the Indian Penal Code, 1860",,,,,,

punishable with imprisonment upto two years and fine. I/we have read and understood Sections 191, 193, 199 and 209 of the Indian Penal Code, 1860.",,,,,,

Verification:,,,,,,

Verified at ____________ on this ____ day of ___________ that the contents of the above affidavit relating to the income and assets of the judgment-,,,,,,

debtor are true to my/our knowledge, no part of it is false and nothing material has been concealed therefrom. I/we further verify that the copies of the",,,,,,

documents filed along with the affidavit are true copies of the originals.,,,,,,

DEPONENT,,,,,,

Declaration:,,,,,,

I declare that I have made accurate, true and complete disclosure of my expenditure from all sources. I further declare that I have no expenditure other than",,,,,,

those set out in this affidavit.,,,,,,

I undertake to inform this Court immediately upon any material change in my expenditure or any other information disclosed in this affidavit.,,,,,,

I hereby declare that the contents of this affidavit have been duly explained to me and have been understood by me.,,,,,,

The copies of the documents filed with the affidavit are the true copies of the originals and I have self attested the copies after comparing them with their,,,,,,

originals.,,,,,,

I understand that any false statement and misrepresentation in this affidavit may constitute an offence under Section 199 read with Sections 191 and 193 of,,,,,,

the Indian Penal Code, 1860 punishable with imprisonment upto seven years and fine, and Section 209 of the Indian Penal Code, 1860 punishable with",,,,,,

imprisonment upto two years and fine. I have read and understood Sections 191, 193, 199 and 209 of the Indian Penal Code, 1860.",,,,,,

DEPONENT,,,,,,

Verification:,,,,,,

Verified at ____________ on this ____ day of ___________ that the contents of the above affidavit relating to my expenditure are true to my knowledge,",,,,,,

no part of it is false and nothing material has been concealed therefrom. I further verify that the copies of the documents filed along with the affidavit are true,,,,,,

copies of the originals.,,,,,,

DEPONENT,,,,,,