Dastagir HussaIn Nadaf Vs. Maharashtra Apex Corporation Ltd. - Court Judgment

Excerpt:

.....code, 1908 (central act no. 5 of 1908) order 21 rule 11(2) - execution petition to be signed by decree holder or person acquainted with the facts of the case -- lawyer engaged not person 'acquainted with the facts of the case''.;(i) the execution petition should be signed either by the decree holder or someone else who is acquainted with the facts of the case. the lawyer engaged cannot be said to be a person acquainted with the facts of the case. the lawyer, will not come within the phraseology 'by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.'; - rule 11a -- not proper to consider prayer for arrest without affidavit.;arrest is a very serious relief. it may not be proper unless the execution is supported by an affidavit, for the court to consider the request for arrest and detention. - motor vehicles act, 1988 [c.a. no. 59/1988]sections 147 & 149: [n. kumar, j] liability of insurer - contention that the policy is not taken in the name of the owner of vehicle - held, before a liability could be foisted on the insurance company, there should be a policy of insurance as contemplated under section 147 of the act. it..........application for the execution of a decree shall be in writing, signed and verified by the applicant, or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, etc., etc.'therefore the execution petition should be signed either by the decree holder or by some one else who is acquainted with the facts of the case. the learned author shri mulla in his civil procedure code, 14th edition, on page 1373 has stated as :-'it may therefore be verified by a person who holds a general power of attorney from the decree-holder, notwithstanding that the decree-holder may be residing within the jurisdiction of the court, where the application is made by a person, other than the decree holder, all that is necessary is that the court should be satisfied that such person is acquainted with the facts of the case.'the lawyer engaged cannot be said to be a person acquainted with the facts of the case. at the most he would have derived the knowledge from his client. he cannot be considered to be a person having personal knowledge in the matter. therefore the lawyer, in my opinion, will.....

Judgment:

ORDER

Kulkarni, J.

1. This is a revision by Judgmeat-debtor-1 against the order dated 20-7-1984 passed by the Munsiff, Ankola, in Execution Case No. 17/1981 ordering Judgment-debtors-1 to 3 to pay the decretal amount in three equal monthly instalments and on failure to pay the decretal amount as directed, Judgment-debtors-1 and 2 shall be kept in civil prison for 15 days.

2. The learned Counsel Shri Ramachandra submitted that the Execution Petition had been signed and verified by the Counsel for the decree holder and that it was not signed and verified as required by Order 21 Rule 11(2) C.P.C. Order 21 Rule 11 (2) C.P.C. reads as :--

'Save as otherwise provided by Sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant, or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, etc., etc.'

Therefore the Execution Petition should be signed either by the decree holder or by some one else who is acquainted with the facts of the case. The learned author Shri Mulla in his Civil Procedure Code, 14th Edition, on page 1373 has stated as :-

'It may therefore be verified by a person who holds a general power of attorney from the decree-holder, notwithstanding that the decree-holder may be residing within the jurisdiction of the Court, Where the application is made by a person, other than the decree holder, all that is necessary is that the Court should be satisfied that such person is acquainted with the facts of the case.'

The lawyer engaged cannot be said to be a person acquainted with the facts of the case. At the most he would have derived the knowledge from his client. He cannot be considered to be a person having personal knowledge in the matter. Therefore the lawyer, in my opinion, will not come within the phraseology 'by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case'. Therefore, the institution of the Execution Petition at its threshold itself is not in consonance with law. Further Rule 11A of Order 21 C.P.C. requires that whenever an application is made for the arrest and detention in prison of the Judgment-debtor, it shall state, or be accompanied by an affidavit stating the grounds on which arrest is applied for. Arrest is a very serious relief. It may not be proper unless the execution is supported by an affidavit, for the Court to consider the request for arrest and detention. Therefore the execution petition at its threshold suffers from serious infirmities and illegalities as pointed out above. Therefore whatever has taken place subsequent thereto, cannot be sustained in law at all.

3. Therefore the order impugned in this revision is set aside in entirety. The revision is allowed. The execution petition is sent back to the Court below for getting it verified by a competent person as mentioned in Order 21 Rule 11 (2) C.P.C. and for taking the affidavit of a person as laid down by Rule 11A of Order 21 C.P.C. The Court below after issuing notices to the parties or their advocates, may proceed with the matter in the light of the directions given above.