Disposed

Madanlal Agrawala v. State

Orissa HC23 Nov 2021WP(C)/5127/2009

Case brief

AI extract

What is this about?

Writ petition challenging the executing court's refusal to issue a proclamation of sale. The High Court held the order improper, stating the court should have directed an affidavit of assets to uncover hidden properties and avoid delaying execution. The writ petition was disposed of.

What did the court decide?

The writ petition is disposed of; the executing court expected to act expeditiously and direct an affidavit of assets.

Madanlal Agrawala Vs State — Execution and Attachment | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.5127 of 2009 (Through hybrid mode)

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Madanlal Agrawala

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…. Petitioner

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Mrs. Pami Rath, Advocate

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-versus-

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State of Odisha and another

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…. Opposite Parties

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Mr.Y.S.P. Babu, Addl. Govt. Advocate

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CORAM: JUSTICE ARINDAM SINHA

ORDER

23.11.2021

Order No.

18.

Mrs. Rath, learned advocate appears on behalf of petitioner and submits, impugned order dated 16^th February, 2009 passed by the executing Court was refusal to issue proclamation of sale of lot nos.1, 2 and 3 of properties belonging to judgment debtor as being disproportionate to claim of her client being decree holder. Further direction in impugned order was for filing fresh list of suitable lots, proportionate to the claim. She relies on sub-rule (2) of rule 41 in order XXI of Code of Civil Procedure to submit, the least that should have been done was for the executing Court to direct judgment debtor to file affidavit of assets. She draws attention to paragraph 12 in the writ petition, where following have been said:

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“12. That after the Hon’ble Court’s order the D.Hr/petitioner filed the petition to attach the bank account of J.Dr/Opp. Parties but in order to avoid the

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same, the opp. Parties very cunningly withdrawn the amount from the bank and opened a secrete new bank account, therefore in the aforesaid situation petitioner/D.Hr. filed petition for attachment of immovable properties under order 21 Rule 54 C.P.C.”

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Mr.Babu, learned advocate appears on behalf of opposite party judgment debtor and draws attention to proviso in sub rule (4) in rule 17 of order XXI. He submits, the executing Court correctly refused to issue proclamation of sale in respect of his client’s properties, as they were of far more value and did not correspond with amount due under the decree. On query from Court he submits, his client has filed counter.

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There is no denial in the counter on allegation made by petitioner in paragraph 12. It appears to be a fact that opposite party removed its money from the bank account known to petitioner, to avoid execution. In its this endeavour of avoiding execution, the executing Court appears to have assisted by passing impugned order.

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The proviso in sub rule (4) in rule 17 of order XXI is there to ensure that where there are several properties of judgment debtor, the one corresponding to amount due under the decree should be chosen for being proclaimed to be sold in execution, satisfaction and discharge of the decree. The executing Court does not appear to have information of other properties of judgment debtor as there is direction in impugned order upon decree holder, to file fresh list of suitable properties. As such the executing Court did not assist decree holder in executing a decree passed by it but required petitioner to run

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from pillar to post. There is provision of requiring judgment debtor to file affidavit of assets. Such affidavit of assets would include details of bank account. The executing Court instead of dealing with and disposing of execution case, has allowed it to linger and kept pending.

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It is expected that the executing Court will act expeditiously in seeing to execution, discharge and satisfaction of the decree.

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The writ petition is disposed of.

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RKS

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(Arindam Sinha)
Judge

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Madanlal Agrawala v. State

Case brief

What is this about?

What did the court decide?

Madanlal Agrawala v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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