NATIONAL AGRICULTURAL COOPERATIVE MARKETING FEDERATION OF INDIA NAFED vs DISHA IMPEX PVT. LTD
$~60
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ OMP (ENF.) (COMM.) 200/2024
NATIONAL AGRICULTURAL COOPERATIVE MARKETING FEDERATION OF INDIA NAFED
…Decree Holder
Through: Mr. Aditya Vijay Kumar, Adv.
versus
DISHA IMPEX PVT. LTD ….Judgment Debtor
Through:
CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
O R D E R (ORAL)
% 04.09.2024
EX.APPL.(OS) 1401/2024 (Exemption)
1. Allowed, subject to all just exceptions.
2. The application is disposed of.
OMP (ENF.) (COMM.) 200/2024
3. Mr. Aditya Vijay Kumar, learned Counsel for the decree holder, sought to contend that, as the present petition has been filed within one year of the passing of the impugned arbitral award on 12 September 2023, the court may direct attachment even without notice to the judgment debtor.
4. He has placed reliance on the proviso to Order XXI Rule 22(1) and on Order XXI Rule 22(2)1 of the CPC for the said purpose.
5. The proviso to Order XXI Rule 22(1) of CPC does not mandate that, in a case in which the execution is filed within one year of the passing of the decree being executed, the court must necessarily direct attachment without issuance of notice to the judgment debtor. It only states that notice would not, in such a case, be necessary. The court has to be conscious of the careful manner in which the Legislature has worded the provision. By using the words no such notice shall be necessary, the Legislature has clearly conferred discretion on the court to decide, on the facts of the case before it, whether notice should or should not be issued.
6. In the present case, as the prayer sought by the decree holder is for attachment of the properties of the judgment debtor, I am of the opinion that it would be in the interests of justice that the judgment debtor is given one opportunity to respond before such an order is passed, especially as it is not the case of the decree holder in the execution proceedings that if such an opportunity is granted, the properties may be frittered away or become unavailable for execution.
7. Order XXI Rule 22(2), in my view, does not apply at all. Order XXI Rule 22(2) is in the nature of an exception to Order XXI Rule 22(1), and empowers a court to, in a case where it feels that issuance of notice Order XXI Rule 22(1) would defeat the ends of justice or result in unreasonable delay, issue a process for execution of the decree without issuance of such notice. The reasons for doing so are required to be recorded by the court in such a case.
8. The facts of this case do not call for application of Order XXI Rule 22(2).
9. Accordingly, issue notice, returnable on 22 November 2024.
10. Notice be additionally served on the judgment debtor through learned counsel who appeared on its behalf before the learned Arbitral Tribunal, if any.
11. Reply, if any, be filed within four weeks with advance copy to learned Counsel for the decree holder who may file rejoinder thereto, if any, within four weeks thereof.
12. The judgment debtor is directed to file an affidavit of its assets in terms of Order XXI Rule XLI read with Form-16 contained in Appendix E of the CPC within four weeks from today.
C. HARI SHANKAR, J.
SEPTEMBER 4, 2024
dsn
Click here to check corrigendum, if any
1 22. Notice to show cause against execution in certain cases.
(1) Where an application for execution is made
(a) more than two years after the date of the decree, or
(b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of Section 44-A,
(c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent,
the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:
Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution if the application is made within two years from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him.
(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.
—————
————————————————————
—————
————————————————————
OMP (ENF.) (COMM.) 200/2024 Page 1 of 4