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M/S Delhi Chemical And … vs Himgiri Realtors Pvt. Ltd. & Anr. on 5 July, 2021

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 5th July, 2021
+ EFA (OS)(COMM) NO.4/2021, CM No.11905/2021 (FOR STAY)
CM No.11906/2021 (FOR CONDONATION OF DELAY OF
346 DAYS IN FILING THE APPEAL)

DELHI CHEMICAL AND PHARMACEUTICAL WORKS
PVT. LTD. ANR. ….. Appellants
Through: Mr. B.B. Gupta, Sr. Adv. with Mr.
Sanjay Agnihotri, Adv. with
appellant no.2 in person.
Versus
HIMGIRI REALTORS PVT. LTD. ANR. ….. Respondents
Through: Mr. Siddharth Bhatli Mr. Abhishek
Choudhary, Advs. for R-1.
Mr. P. Nagesh, Sr. Adv. with Mr.
Akshay Sharma, Adv. for R-2.
CORAM:
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON’BLE MR. JUSTICE AMIT BANSAL
[VIA VIDEO CONFERENCING]
RAJIV SAHAI ENDLAW, J.

1. This appeal, under Section 13(1A) of the Commercial Courts Act,
2015, impugning the orders dated 23rd December, 2019 and 13th March,
2020 of the Commercial Division of this Court in OMP(ENF.)(COMM)
No.140/2019, and accompanied with applications for condonation of delay
of 346 days in filing of the appeal and for stay of the impugned orders,
came up before us for admission on 27th April, 2021, when finding the
impugned orders to have been passed by only referring to Bhandari

EFA (OS)(COMM) No.4/2021 Page 1 of 51
Engineers Builders Pvt. Ltd. Vs. Maharia Raj Joint Venture
MANU/DE/4601/2019 and further being of the view that there was an
inconsistency between Bhandari Engineers Builders Pvt. Ltd. supra and
M.L. Gupta Vs. Aerens Gold Souk International Ltd. 2018 SCC OnLine
Del 7621, and being otherwise also of the opinion that the matter required
consideration, leaving open the aspect of maintainability of the appeal,
notice of the appeal and the applications was issued.

2. The senior counsel for the appellant no.1 Delhi Chemical and
Pharmaceutical Works Pvt. Ltd. and appellant no.2 Ameet Sharma, the
counsel for the respondent no.1 Himgiri Realtors Pvt. Ltd. and the senior
counsel for respondent no.2 Samir Dev Sharma, were heard on 25th May,
2021, on, the application for condonation of delay in preferring the appeal,
maintainability of the appeal as well as on the merits of the appeal, and
orders reserved.

3. As far as the delay in preferring the appeal is concerned, the
appellants, in the application for condonation of delay, have attributed the
same to (i) suspension of the period of limitation during the prevalent
Covid-19 pandemic; and, (ii) the appellant no.2, who is the authorized
signatory of the appellant no.1, being unwell and the old age of his mother.

4. The counsel for the respondent no.1, which is the only contesting
respondent, to be fair to him, did not seriously contest the application for
condonation of delay.

5. Owing to the Supreme Court, vide orders dated 23rd March, 2020 and
8th Match, 2021 in SMW(C) No. 3/2020 titled In Re: Cognizance for
Extension of Limitation having suspended the period of limitation, CM

EFA (OS)(COMM) No.4/2021 Page 2 of 51
No.11906/2021 for condonation of delay, though superfluous, is allowed
and the appeal considered on merits.

6. CM No.11906/2021 is disposed of.

7. The respondent no.1 filed OMP (ENF.) (COMM.) No.140/2019 for
execution of the arbitral award dated 11th March, 2019 as a decree of the
Court, describing itself as the decree holder and the two appellants and the
respondent no.2 as the judgment debtors, and pleading that a total amount
of Rs.21,17,80,487/- was due as on 11th July, 2019, jointly and severally
from the two appellants and the respondent no.2 [hereinafter together
referred to as “judgment debtors”] to the respondent no.1 [hereinafter
referred to as “decree holder”] under the award dated 11th March, 2019. In
paragraph 10 of the Execution Petition [filed in the form prescribed in the
Code of Civil Procedure, 1908 (CPC)], requiring the decree holder to state
“In what manner court‟s assistance is sought”, the decree holder pleaded,
“By issuance of attachment warrant the Hon‟ble court may be pleased to
attach the movable and immovable properties of the judgment debtors in
view of Order XXI of the CPC”. In paragraph 11 of the Execution Petition,
requiring the decree holder to furnish “Any other information”, the decree
holder pleaded, that (i) the judgment debtors had failed to make payment of
the awarded amount to the decree holder; (ii) the decree was to be executed
jointly and severally against the judgment debtors; and, (iii) “To the best of
the knowledge of the decree holder, the judgment debtors have assets and
properties, movable and immovable”. The decree holder, in the prayer
paragraph of the Execution Petition, sought (a) a direction to the judgment
debtors to pay to the decree holder the awarded amount with interest, in

EFA (OS)(COMM) No.4/2021 Page 3 of 51
terms of the arbitral award dated 11th March, 2019; (b) to restrain the
judgment debtors from alienating any movable and immovable properties;

(c) attachment of any rental or income being derived by the judgment
debtors from the immovable properties; and, (d) attachment and sale of
movable and immovable properties of the judgment debtors. The Execution
Petition was accompanied with a “Schedule of Properties”, wherein the
decree holder listed, (i) property no.4, Ansari Road, Daryaganj, New Delhi
and property no.A-8 (Site IV) Link Road, Sahibabad, District Ghaziabad
(UP) as the properties of appellant no.1/judgment debtor, (ii) property
no.66, East Friends Colony, New Delhi and property no.227, Siddharth
Enclave, New Delhi as the properties of appellant no.2/judgment debtor,
and (iii) property no.66A, East Friends Colony, New Delhi and property
no.A-20, New Friends Colony (East), New Delhi as the properties of one
Trustline Real Estate Pvt. Ltd. in which the appellant no.2/judgment debtor
held a 95.2% shareholding.

8. It appears that when the Execution Petition came up before the
Commercial Division on 30th August, 2019, the Commercial Division, in
exercise of powers under Order XXI Rule 41(2) of the CPC, directed the
judgment debtors to file affidavits of their assets, in Form 16A, Appendix E
of the CPC. The Commercial Division, vide order dated 3rd December,
2019, further directed the judgment debtors to file additional affidavits, as
per Annexures to the said order, together with documents required to be
furnished in accordance with the said annexures.

EFA (OS)(COMM) No.4/2021 Page 4 of 51

9. A perusal of the impugned order dated 23rd December, 2019 shows,
that on the judgment debtors seeking further time to file additional
affidavits as directed, the Commercial Division, while granting such time,
modified the earlier order dated 3rd December, 2019 and directed that
instead of the additional affidavits being filed in terms of annexures to the
order dated 3rd December, 2019, the additional affidavits be filed as per
annexures to Bhandari Engineers Builders Pvt. Ltd. supra.

10. The judgment debtors filed EA No.217/2020 and Review Petition
No.64/2020, seeking exemption from filing of the additional affidavits as
directed, on the ground of confidentiality of personal information and
documents and on the ground that the decree holder was sufficiently
protected under the arbitral award, of which enforcement was sought. The
Commercial Division however, vide order dated 13th March, 2020 disposed
of the said applications holding that the judgment debtors could not be
exempted from filing the affidavits merely on the ground that the decree
holder was sufficiently secured; with respect to the plea of confidentiality of
the personal information, the judgment debtors were permitted to file
confidential information / documents in sealed covers and the plea of
confidentiality left open to be considered at an appropriate stage.

11. The judgment debtors have preferred this appeal, pleading that (i) the
judgment debtors, as owners of a plot of land no.A-8 (Site IV) Link Road,
Sahibabad, District Ghaziabad (UP) had entered into a Collaboration
Agreement with the decree holder, for development of the said property and
on disputes and differences arising between the parties, the same were
referred to arbitration; (ii) the Arbitral Tribunal held that the judgment

EFA (OS)(COMM) No.4/2021 Page 5 of 51
debtors were liable to pay the awarded amount to the decree holder and the
decree holder was liable to hand back vacant peaceful physical possession
of the plot of land aforesaid to the judgment debtors; (iii) the Arbitral
Tribunal further held that the decree holder was entitled to hold possession
of the said plot of land till payment of the awarded amount by the judgment
debtors to the decree holder; (iv) the judgment debtors have filed an
application under
Section 34 of the Arbitration Conciliation Act, 1996
with respect to the award and which application was pending consideration;

(v) the decree holder accepted the arbitral award in toto and had filed
OMP(ENF.)(COMM) No.140/2019 in execution thereof; (vi) though Order
XXI Rule 41(2) of the CPC provides for a direction to the judgment debtor
to file affidavit in the form prescribed therein only when the decree for
payment of money had remained unsatisfied for a period of 30 days and
only on the application of the decree holder, the Commercial Division, in
violation thereof had directed filing of affidavits without there being any
application of the decree holder therefor and without the decree having
remained unsatisfied; (vii) there was thus no justification for the
Commercial Division to direct filing of affidavits by the judgment debtors;

(viii) that the dicta in Bhandari Engineers Builders Pvt. Ltd. supra
prescribing the form in which the affidavits were to be filed would come
into operation only on fulfilment of conditions aforesaid under Order XXI
Rule 41 (2) of the CPC and not without the said conditions being fulfilled;

(ix) the decree holder in the present case was not only well aware of the
assets / properties of the judgment debtors, as evident from filing of
schedule of the said properties along with Execution Petition but the arbitral
award being executed as a decree itself secured the decree holder by

EFA (OS)(COMM) No.4/2021 Page 6 of 51
directing the decree holder to deliver possession of the immovable property
of the judgment debtors in its possession to the judgment debtors against
payment of the awarded amount; that decree holder was thus secure with
respect to the recovery of the decretal amount; (x) thus the facts in the
present case were very different from the facts of Bhandari Engineers
Builders Pvt. Ltd. supra; Bhandari Engineers Builders Pvt. Ltd. supra
was concerned with difficulties generally faced by decree holders in
execution of the decrees; however in the present case, the decree holder was
not facing any difficulty inasmuch as, as per the arbitral award having force
of a decree, the decree holder was entitled to retain possession of the
immovable property of judgment debtors till payment and the decree holder
was even otherwise aware of several other properties of the judgment
debtors mentioned in the schedule appended to the Execution Petition; (xi)
the examination of a judgment debtor under Order XXI Rule 41 is to be
resorted to only when the decree holder is not aware of the assets and
properties of the judgment debtors; however in the present case the decree
holder is not only well aware of the assets and properties of the judgment
debtors but had already taken possession of the property of the judgment
debtors in terms of the directions in the arbitral award and in accordance
wherewith the decree holder is entitled to retain the said possession till
realization of the decretal amount; (xii) the value of the property of the
judgment debtors in possession of the decree-holder was over Rs.72 crores
as against the awarded amount of about Rs.22 crores claimed to be due;

(xiii) the burden of disclosing the assets, as per Section 106 of the Indian
Evidence Act, 1872, can only be cast upon the judgment debtor when no
properties or assets of the judgment debtor are in the knowledge of the

EFA (OS)(COMM) No.4/2021 Page 7 of 51
decree holder; (xiv) a mechanical implementation of Bhandari Engineers
Builders Pvt. Ltd. supra causes unnecessary delay to the execution
proceedings and causes unnecessary prejudice to the judgment debtor; it
also causes waste of time of the Court in knowing what is already known to
the decree holder and has been placed before the Court; (xv) the High Court
of Bombay, in United Phosphorous Ltd. Vs. A.K. Kanoria AIR 2003 Bom
97 has opined that examination of judgment debtor under Order XXI Rule
41 is not one of the modes of execution of a decree provided under Order
XXI Rule 11(2)(j) of the CPC; Order XXI Rule 41 is merely an aid to the
decree holder to enable him to execute the decree by obtaining information
which is within the special knowledge of the judgment debtor; (xvi) the
High Court of Calcutta also in Srei Equipment Finance Pvt. Ltd. Vs.
Khyoda Apik AIR 2016 Cal 293 (DB) has held that Order XXI Rule 41 is
to be resorted to only when the decree holder is not aware of the properties
of the judgment debtor from which the money decree is to be executed;
(xvii) even Bhandari Engineers Builders Pvt. Ltd. supra holds that if the
decree holder is aware of the assets of the judgment debtors, the Court can
attach such assets at the very threshold of the execution application; (xviii)
Order XLI Rule 1(3) and Rule 5 also provide for opportunity to the
judgment debtor to obtain a stay against the decree upon deposit of the
disputed amount in the Court;
Section 34 of the Arbitration Act also
empowers the Court to direct the judgment debtor to furnish security for the
disputed amount and to stay the execution on such security being furnished;
here, the decree holder is already in possession of security in the form of
immovable property, for satisfaction of the arbitral award having force of
the decree; (xix) direction to the judgment debtors to furnish information of

EFA (OS)(COMM) No.4/2021 Page 8 of 51
other assets beyond the security already in possession of the decree holder
and way beyond the decretal amount, constraints the said assets of the
judgment debtors and infringes the constitutional rights of the judgment
debtors; (xx) the Commercial Division has erred in issuing direction for
filing affidavits, without even the decree holder having applied therefor;
(xxi) this has resulted in wastage of time, as instead of the execution
proceeding further, several dates have been wasted by the Commercial
Division in issuing directions for filing of affidavits; (xxii) the Commercial
Division, in directing affidavits disclosing assets of value much beyond the
decretal amount to be filed, has also exceeded its jurisdiction; reliance in
this regard is placed on Kohinoor Transporters Vs. State of Uttar Pradesh
(2018) 18 SCC 165; (xxiii) the information prescribed in the affidavits
formulated in Bhandari Engineers Builders Pvt. Ltd. supra is way
beyond what was / is necessary for securing the decretal amount and for this
reason also the direction for furnishing of the said information is beyond the
jurisdiction of the Commercial Division as the Executing Court; (xxiv)
direction for furnishing of private and sensitive information regarding
matrimonial disputes which are predominantly personal/private in nature,
infringes the rights of the judgment debtors to privacy; the said information,
once presented in the Court, can be utilized not only by the decree holder
but by others, to the prejudice of the judgment debtors;(xxv) the affidavit
Annexure-A to Bhandari Engineers Builders Pvt. Ltd. supra, in Serial
no.10(g)(h) and (i) and at Serial no.63 to 65, requires the judgment debtor to
furnish Aadhar number, passport number, Permanent Account Number
(PAN) details; such information is private and sensitive and considered
confidential by the individual, especially in this age of online and banking

EFA (OS)(COMM) No.4/2021 Page 9 of 51
frauds; furnishing of such information has serious implications; also, the
said information concerns the judgment debtor and not the assets of the
judgment debtor qua which only affidavit can be directed to be filed under
Order XXI Rule 41 of the CPC; (xxvi) Serial no.13(i) and (ii) of the
annexure to Bhandari Engineers Builders Pvt. Ltd. supra also require
the judgment debtor to furnish information for the previous ten years, when
the
Income Tax Act, 1961 and the Companies Act, 1956 do not themselves
mandate maintenance of records beyond eight years; (xxvii) Serial no.20 of
the annexure formulated by the Court in Bhandari Engineers Builders
Pvt. Ltd. supra also requires information to be given by the judgment
debtor, of all the properties which have ever been in the name of the
judgment debtor or in which the judgment debtor has ever had any right or
interest; it is not humanly possible to give such information and which even
otherwise is of no relevance; (xxviii) Serial no.58 of annexure formulated
by the Court in Bhandari Engineers Builders Pvt. Ltd. supra also
requires the judgment debtor to give particulars of credit / debit cards and
which particulars also ought not to be made public; the issuing banks
themselves use redacted particulars thereof; (xxix) Serial nos.63 to 66 of the
annexure formulated by the Court in Bhandari Engineers Builders Pvt.
Ltd. supra, as aforesaid, require the judgment debtor to furnish details of
Aadhar Card, PAN card, passport and Credit Information Report (CIR) /
Credit Information Bureau (India) Limited (CIBIL) rating, and are capable
of misuse; (xxx) as per Serial nos.77 to 79 of Annexure A and serial nos.61
to 63 of Annexure B formulated by the Court in Bhandari Engineers
Builders Pvt. Ltd. supra, a judgment debtor is required to furnish
documents of all pending and disposed of litigations against himself / itself

EFA (OS)(COMM) No.4/2021 Page 10 of 51
and which is again neither necessary nor expedient to the execution; (xxxi)
Serial no.57 of annexure formulated to Bhandari Engineers Builders
Pvt. Ltd. supra requires judgment debtor to furnish particulars of his social
media accounts, which again contains personal information, making the
judgment debtor prone to cyber crimes, phishing, scams, cyber stalking,
extortion etc.; (xxxii) per M.V. Vali Pero Vs. Fernando Lopez AIR 1989
SC 2206, rules of procedure should promote justice and prevent miscarriage
of justice; furnishing of information as laid down in Bhandari Engineers
Builders Pvt. Ltd. supra does not promote justice but rather leads to
miscarriage of justice; (xxxiii) mandatory filing of affidavits of income and
assets adversely affects the true spirit of
Arbitration Act as laid down in
Emkay Global Financial Services Ltd. Vs. Girdhar Sondhi (2018) 9 SCC
49 and delays execution of arbitral awards rather than expediting the same;
(xxxiv) if the affidavits are filed in a sealed cover and the particulars
whereof are not available to the decree holder, the direction for filing
thereof in any case does not serve any purpose; (xxxv) once Order XXI
Rule 41 CPC provides for issuance of a direction for affidavit to be filed on
an application of the decree holder, as per Bachhaj Nahar Vs. Nilima
Mandal (2008) 17 SCC 491, in the absence of an application from the
decree holder, no such direction could have been issued to the judgment
debtor; (xxxvi) the direction for filing of affidavit of assets of the value
beyond the decretal amount, is also beyond the jurisdiction of the
Commercial Division acting as the executing Court; (xxxvii) the application
of the judgment debtors for stay of execution of the arbitral award is already
pending in
Section 34 proceedings filed by the judgment debtors with
respect to the subject arbitral award; and, (xxxviii) the time of the Courts /

EFA (OS)(COMM) No.4/2021 Page 11 of 51
Commercial Divisions, in following Bhandari Engineers Builders Pvt.
Ltd., is being wasted, in directing the affidavits as formulated therein to be
filed, even when the particulars of the assets of the judgment debtors from
which decree could be executed are already before the Court, as in the
present case.

12. We would ordinarily not have set out in detail, the pleadings in a
memorandum of appeal, but have deemed it apposite to do so in the present
case because a reading of the impugned orders does not disclose the issues
entailed and because the impugned orders are premised only on Bhandari
Engineers Builders Pvt. Ltd. supra. We were also concerned, that
inspite of the Execution Petition pending before the Commercial Division
since August, 2019 and inspite of particulars of assets of the judgment
debtors being before it, the Commercial Division, instead of proceeding
with attachment and sale of the said assets from which the decretal amount
could be satisfied, is found to have spent over one year in directing the
judgment debtors to file additional affidavits of assets, when, we
reemphasize, there was no need for the information required to be disclosed
in the said affidavits. Merit was thus indeed found in the well articulated
challenge in the memorandum of appeal, to the direction in the impugned
orders for filing of additional affidavits.

13. The impugned order dated 23rd December, 2019 directing the
judgment debtors to file additional affidavits having been made suo motu
by the Court and not on any application of the decree holder, the occasion
for the judgment debtors to oppose the same or for the Commercial
Division to deal with the said opposition as made in this appeal, did not

EFA (OS)(COMM) No.4/2021 Page 12 of 51
arise. Though the judgment debtors, in EA no.217/2020 and Review
Petition no.64/2020 aforesaid took most of the grounds as enunciated in the
memorandum of appeal, but the Commercial Division, in the impugned
order dated 13th March, 2020, again did not deal therewith and disposed of
the same merely observing that information qua which confidentiality was
claimed could be furnished in a sealed cover and that as per the dicta in
Bhandari Engineers Builders Pvt. Ltd. supra, no exemption from filing
affidavits could be granted.

14. The senior counsel for the appellants / judgment debtors drew our
attention to, (i)
Section 36 of the Arbitration Act, to contend, firstly that an
arbitral award has to be enforced in accordance with the provisions of the
CPC, in the same manner as if it were a decree of the Court and secondly,
that the appellants / judgment debtors are entitled to, in their proceedings
under
Section 34 of the Arbitration Act, seek an order of stay of execution
of the award and till such application has been considered and which could
not be considered owing to the prevalent Covid-19 pandemic, no orders in
execution ought to have been made; (ii) Sections 36 to 74 of the CPC
pertaining to execution, with special emphasis on
Section 51 titled “Powers
of Court to enforce execution” to contend that examination of the judgment
debtor or direction to the judgment debtor to file the affidavits as laid down
in Bhandari Engineers Builders Pvt. Ltd. supra, is not a prescribed
mode of execution and to further contend that the Commercial Division in
the instant case, instead of proceeding in the execution in one of the modes
prescribed i.e. by attachment and sale of the properties of the judgment
debtors, list whereof was furnished by the decree holder, has adopted a
mode of execution which is not in the domain of the Commercial Division
EFA (OS)(COMM) No.4/2021 Page 13 of 51
as an executing Court; (iii) Order XXI Rules 10 and 11 of the CPC, to
contend that an application for execution is prescribed to be made in writing
and an oral application for execution is permitted only at the time of passing
of the decree when immediate execution thereof is sought; (iv) Order XXI
Rule 11(2)(j), to contend that the decree holder, in the application for
execution is required to plead one of the specified modes in which the
assistance of the Court is required and to again contend that filing of an
affidavit is not a prescribed mode of execution; (v) Order XXI Rules 12
and 13, to contend that the application for execution is required to annex
thereto the list of the properties of the judgment debtor, attachment and sale
whereof in execution of a money decree is sought; (vi) Order XXI Rule 41
of the CPC, to contend, (a) that the same has been placed under the heading
/ sub-chapter titled “Attachment of Property”; and, (b) that the same does
not empower the executing Court to, in every case direct the judgment
debtor to furnish an affidavit or affidavits or as laid down in Bhandari
Engineers Builders Pvt. Ltd. supra but empowers the Court to, as a part
of one of the prescribed modes of execution i.e. attachment of property, on
an application of the decree holder, issue such a direction to the judgment
debtor; (vii) proviso to Rule 17(4) of Order XXI, to contend that in
accordance therewith, the value of the property to be attached has to
correspond with the amount due under the decree and to further contend
that thus the direction under Order XXI Rule 41 which is in aid of
attachment of property, also has to be confined to disclose only such
properties, value whereof would correspond with the amount of the decree;

(viii) Form 16A in Appendix-E to the CPC prescribing the form in which
the affidavit of assets in pursuance to a direction under Order XXI Rule 41

EFA (OS)(COMM) No.4/2021 Page 14 of 51
is to be filed; and, (ix) Order XLVIII Rule (3) of the CPC laying down that
“the forms given in the appendices, with such variation as the circumstances
of each case may require, shall be used for the purposes therein mentioned”,
to contend that thus the variation in the affidavits to be filed in Form 16A in
Appendix-E to the CPC, in terms of Order XXI Rule 41, has to be confined
to the purpose thereof and cannot be so vast and of general application as
laid down in Bhandari Engineers Builders Pvt. Ltd. supra.

15. The senior counsel for the appellants / judgment debtors argued, that

(i) a decree holder is entitled to apply under Order XXI Rule 41 of the CPC,
only if not in the know of any of the assets of the judgment debtors, from
attachment and sale whereof the money decree can be realized; (ii) in the
present case, the respondent no.1/decree holder rightly did not apply under
Order XXI Rule 41 of the CPC, because was aware of the assets of the
judgment debtors and in fact had appended to the Execution Petition, a list
of such assets, from attachment and sale whereof the money decree was
sought to be executed; (iii) not only so, the arbitral award sought to be
executed as a decree, also permitted the decree holder to retain possession
of an immovable property of the judgment debtors valued at over Rs.72
crores, till the awarded amount which according to the decree holder was
about Rs.22 crores, was paid; the decree was thus to be executed by
attachment and sale of the said property only and not of any other property;

(iv) non compliance of an order under Order XXI Rule 41 has grave
consequences, as prescribed in Order XXI Rule 41(3) i.e. of imprisonment
upto three months and thus the direction under Order XXI Rule 41 of the
CPC is not to be made lightly and only when required in the facts of the
case; (v) Bhandari Engineers Builders Pvt. Ltd. supra, to the extent
EFA (OS)(COMM) No.4/2021 Page 15 of 51
directs the executing Court to, even in the absence of any application of the
decree holder, direct the judgment debtor to file affidavits in the format as
also laid down therein, is contrary to the express language of Order XXI
Rule 41 of the CPC; (vi) similarly, Bhandari Engineers Builders Pvt.
Ltd. supra, to the extent directs affidavits to be filed in the format laid down
therein, is contrary to the CPC inasmuch as CPC, in Appendix-E prescribes
the form (Form No.16A) in which affidavit is to be filed and Order XLVIII
Rule 3 permits the Court to make variation in the said form only as per the
needs of a particular case; (vii) the Court, in Bhandari Engineers
Builders Pvt. Ltd. supra could not have thus prescribed a form, of general
application, other than and in supersession of the form prescribed by the
legislature in the CPC and the Court, in Bhandari Engineers Builders
Pvt. Ltd. supra, acted as super legislature and which is not permitted under
the Constitution of India; (viii) Bhandari Engineers Builders Pvt. Ltd.
supra, to the extent requires the judgment debtors to disclose properties of
value in excess of the decretal amount, is also contrary to the proviso to
Order XXI Rule 17(4) and the Court in Bhandari Engineers Builders
Pvt. Ltd. supra has again sought to legislate over a field over which the
legislature has already acted; the Court in Bhandari Engineers Builders
Pvt. Ltd. supra has thus proceeded beyond its adjudicatory role and entered
the legislative arena, which is not in the domain of the Court; (ix) besides
the property of the judgment debtors in possession of the decree holder and
of which the decree holder under the arbitral award is entitled to hold
possession till recovery and the value of which property is much more than
the decretal amount claimed, the decree holder, in the schedule to the
Execution Petition has given list of several other properties of the judgment

EFA (OS)(COMM) No.4/2021 Page 16 of 51
debtors and the value of each of which property is in excess of the decretal
amount and there was thus no occasion for the Commercial Division to
issue a direction in exercise of powers under Order XXI Rule 41 of the
CPC; (x) though the contention of the judgment debtors is that Bhandari
Engineers Builders Pvt. Ltd. supra does not lay down good law but
alternatively it is the plea of the judgment debtors that the direction in terms
of Bhandari Engineers Builders Pvt. Ltd. supra can be issued only when
the conditions of Order XXI Rule 41 are satisfied and which were not
satisfied in the present case; and, (xi) Bhandari Engineers Builders Pvt.
Ltd. supra is also erroneous, to the extent directs the executing Courts to, in
all cases, suo motu, at the very first instance, issue direction to the judgment
debtor for filing of affidavits as prescribed therein, when as per Order XXI
Rule 41 of the CPC the said direction can be issued only when the decree
has remained unsatisfied; the question of the decree remaining unsatisfied
in the present case did not arise owing to the decree holder holding
possession of a property of the judgment debtors, value of which is much in
excess of the decretal amount.

16. The senior counsel for the respondent no.2 / judgment debtor,
supporting the arguments of the senior counsel for the appellants / judgment
debtors, argued that (i) the direction to the judgment debtor under Order
XXI Rule 41 of the CPC is not automatic but subject to the conditions
therein being satisfied i.e. of the decree holder making an application and of
the decree remaining unsatisfied; thus the question of the executing Court
issuing a direction under Order XXI Rule 41 of the CPC, in each and every
case, irrespective of whether the decree holder has applied for an order
thereunder and / or whether the decree holder has specified the properties of
EFA (OS)(COMM) No.4/2021 Page 17 of 51
the judgment debtor from attachment and sale whereof execution is sought,
is contrary to law; (ii) placed reliance on Anirban Roy Vs. Ram Kishan
Gupta MANU/DEL/3524/2017 in this regard; (iii) the forms laid down by
this Court in Bhandari Engineers Builders Pvt. Ltd. supra, in
accordance wherewith the affidavits are to be filed by the judgment debtors,
contravene the rights of privacy of the judgment debtors as recognized in
K.S. Puttaswamy Vs. Union of India (2017) 10 SCC 1; (iv) drew attention
to the forms laid down in Bhandari Engineers Builders Pvt. Ltd. supra,
requiring the judgment debtors to furnish information under as many as 51
heads pertaining to their personal affairs and if Director of a company, to
furnish information under as many as 64 heads and contended that most of
the information required to be furnished therein is unnecessary and alien to
the execution proceeding; (v) insistence on the format laid down by this
Court in Bhandari Engineers Builders Pvt. Ltd. supra, in which the
judgment debtors in every execution are required to furnish information, is
a waste of time of the Court and permits decree holder and others inimical
to the judgment debtor, to make a roving and fishing enquiry relating to the
affairs of the judgment debtors and to the prejudice of the judgment debtors;

(vi) the Court proceedings have to be confined to the purport thereof and
scope thereof cannot be expanded, as has been done in Bhandari Engineers
Builders Pvt. Ltd. supra; (vii) the arbitral award sought to be executed as
a decree having itself provided that the payment of the award amount by the
judgment debtors to the decree holder has to be simultaneous to the delivery
of possession of the property of the judgment debtors in possession of the
decree holder by the decree holder to the judgment debtors, the decree had
to be executed by attachment and sale of that property only and in no other

EFA (OS)(COMM) No.4/2021 Page 18 of 51
manner; (viii) CPC, wherever permits an oral application, has expressly
provided so and Order XXI Rule 41 does not envisage an order thereunder
on an oral application of the decree holder; attention was invited to Order
XXI Rule 12 of the CPC permitting execution on an oral application; (ix)
though the Commercial Division issued the direction for filing of affidavit
by the judgment debtors without any application and without hearing the
judgment debtors but even when the judgment debtors applied by way of
EA No.217/2020 and Review Petition No.64/2020 taking all the said
grounds, the Commercial Division did not deal with the grounds urged and
proceeded on the premise that in terms of Bhandari Engineers Builders
Pvt. Ltd. supra, in every execution proceeding, direction for filing affidavits
is a must; and, (x) the purpose of making an order under Order XXI Rule 41
of the CPC is to enable the decree holder to know of the properties of the
judgment debtors from attachment and sale whereof the decree can be
satisfied; the said purpose is not served by directing the judgment debtors to
furnish the information in a sealed cover, as has been directed by the
Commercial Division in the present case; if the decree holder does not learn
of the assets or particulars of the judgment debtors, decree holder cannot
possibly seek execution thereagainst.

17. This Court, in order dated 27th April, 2021, while issuing notice of
the appeal, having also raised doubts as to the maintainability thereof, the
senior counsel for the appellants/judgment debtors, on the aspect of
maintainability of the appeal, contended that (i) DH India Ltd. Vs.
Superon Schweisstechnik India Ltd. (2020) 268 DLT 15 (DB), lays down
that the proviso to Section 13(1A) of the Commercial Courts Act cannot be
read as limiting the right to appeal conferred by
Section 13(1A) and that the
EFA (OS)(COMM) No.4/2021 Page 19 of 51
said proviso merely states that, from orders passed by the Commercial
Division of the High Court, as are specifically enumerated under Order
XLIII of the CPC, an appeal would lie under
Section 13(1A) and that the
said proviso cannot be read as meaning that no appeal would lie in any
other case especially where the order under appeal has not been passed
under the CPC at all, but, as in that case, under Rule 5 in Chapter II of the
Delhi High Court (Original Side) Rules, 2018; (ii) all arbitrations do not
qualify as a commercial dispute within the meaning of the Commercial
Courts Act; (iii) vide Section 10(2) of the Commercial Courts Act, all
applications or appeals arising out of arbitration under the provisions of the
Arbitration Act, subject matter whereof is a commercial dispute of a
specified value, are to be heard and disposed of by the Commercial
Division; (iv) the
Arbitration Act does not deal with execution and thus
does not provide for any application or appeal during the course of
execution of an arbitral award;
Section 10(2) having prescribed jurisdiction
of the Commercial Division only with respect to applications and appeals
arising under the provisions of the
Arbitration Act, the Commercial
Division does not have the jurisdiction to entertain petitions for execution
of arbitral awards and thus the execution proceedings are not governed by
the Commercial Courts Act and the limitations qua appeal, as prescribed in
Section 13 of the Commercial Courts Act, do not apply to execution
proceedings; and, (v) the execution proceedings also do not have any
specified value, within the meaning of Section 10 of the Commercial Courts
Act; thus execution of arbitral award is not within the domain of the
Commercial Courts Act.

EFA (OS)(COMM) No.4/2021 Page 20 of 51

18. The counsel for the respondent no.1 / decree holder, opposing the
arguments of the senior counsels for the judgment debtors, contended that

(i) the judgment debtors, in Review Petition No.64/2020 preferred by them,
in alternative to seeking the review of the order dated 3 rd December, 2019,
also offered to file affidavit in sealed cover; (ii) the judgment debtors
having themselves so offered to file affidavits in the sealed cover and which
offer of the judgment debtors was accepted by the Commercial Division,
are not entitled to raise a grievance with respect thereto and this appeal, for
this reason alone is not maintainable and liable to be dismissed; (iii) the
execution proceedings from which this appeal arises, commenced prior to
the dicta in Bhandari Engineers Builders Pvt. Ltd. supra; vide order
dated 30th August, 2019 in the execution proceedings, the judgment debtors
were directed to furnish affidavits in Form 16A in Appendix-E to the CPC;

(iv) however the Commercial Division vide order dated 3 rd December, 2019
directed additional affidavits to be filed, instead of in Form 16A in
Appendix-E to the CPC, in the format as laid down in the Annexure thereto;

(v) subsequently, pursuant to pronouncement in Bhandari Engineers
Builders Pvt. Ltd. supra, vide order dated 23rd December, 2019 the affidavit
in the form prescribed therein was directed to be filed; (vi) the judgment
debtors, before the Commercial Division were seeking time to file the
affidavits and thus cannot now in appeal challenge the direction for filing of
affidavit; (vii) the judgment debtors have not impugned the order dated 3rd
December, 2019 directing the affidavit to be filed in terms of annexure
thereto and are thus not entitled to challenge the subsequent order dated 23 rd
December, 2019 which merely modified the form of the affidavit, to as laid
down in Bhandari Engineers Builders Pvt. Ltd. supra; (viii) the property

EFA (OS)(COMM) No.4/2021 Page 21 of 51
of the judgment debtors in possession of the decree holder in terms of the
arbitral award is located at Sahibabad and is not sellable because of dispute
with respect thereto pending with Uttar Pradesh State Industrial
Development Corporation (UPSIDC) which has cancelled the lease and is
reclaiming the land; and, (ix) without the judgment debtors filing the
affidavits, the decree holder would not be able to trace the properties of the
judgment debtors.

19. We have considered the rival contentions. As would be evident from
the aforesaid narrative of the contentions of the senior counsels for the
judgment debtors, their arguments constitute a challenge to correctness of
Bhandari Engineers Builders Pvt. Ltd. supra. Bhandari Engineers
Builders Pvt. Ltd. supra is however not in appeal before us. We have thus
wondered, whether without sitting in appeal against Bhandari Engineers
Builders Pvt. Ltd. supra, we, while dealing with this appeal, can go into the
correctness of the dicta in Bhandari Engineers Builders Pvt. Ltd. supra.
During the hearing, we also enquired whether any appeal had been
preferred against Bhandari Engineers Builders Pvt. Ltd. supra and were
informed that no appeal was filed or is pending.

20. We may at this stage record, that Bhandari Engineers Builders
Pvt. Ltd. supra has been penned by the same Single Judge / Presiding Judge
of the Commercial Division who has authored the orders impugned before
us. Perhaps for this reason, in the impugned orders, no need was felt to give
any reasons and the Commercial Division directed affidavits to be filed and
dismissed EA No.217/2020 and Review Petition No.64/2020 raising the

EFA (OS)(COMM) No.4/2021 Page 22 of 51
same arguments as raised in this appeal, merely observing that “this is no
ground for not filing the affidavits of assets by judgment debtor no.2”.

21. Having pondered over the aforesaid question, we are of the view that
once the impugned orders are premised only on Bhandari Engineers
Builders Pvt. Ltd. supra, we would not be exceeding our appellate
jurisdiction while sitting in appeal against the impugned orders, by making
observations and returning findings to the extent required for the purpose of
the present appeal, qua the correctness of Bhandari Engineers Builders
Pvt. Ltd. supra.

22. Before however entering into the merits of the matter, the question of
maintainability of the present appeal is to be decided.

23. The senior counsels for the judgment debtors, on the aspect of
maintainability, raised two arguments. Firstly, of execution of an arbitral
award executable as a decree under the CPC, in terms of
Section 36 of the
Arbitration Act, being not within the jurisdiction of the Commercial Courts
/ Commercial Division and secondly, by relying on the comparatively
recent judgment of this Court in DH India Ltd. supra. We had however
during the hearing raised two other questions. Firstly, we had drawn
attention to Section 13(1A) of the Commercial Courts Act, which uses two
expressions i.e. “judgment or order” and to the proviso thereto, which
restricts appeals against “orders” to only the orders enumerated in Order
XLIII of the CPC; we had enquired, whether notwithstanding the proviso,
appeals against orders qualifying as a “judgment” remain maintainable
under Section 13(1A) of the Commercial Courts Act. Secondly, we had
enquired from the counsels, whether the proviso after Section 13(1A)

EFA (OS)(COMM) No.4/2021 Page 23 of 51
regulates both,
Section 13(1) as well as Section 13(1A) or only Section
13(1A).

24. As far as our first query aforesaid is concerned, DH India Ltd.
supra considered three earlier judgments, also of Division Benches of this
Court i.e. HPL (India) Limited Vs. QRG Enterprises (2017) 238 DLT 123
(DB), Samsung Leasing Ltd. Vs. Samsung Electronics Co. Ltd. (2017)
242 DLT 608 (DB) and Rahul Gupta Vs. Pratap Singh (2014) 206 DLT
188 (DB). In HPL (India) Ltd. supra, it was held that, (i)
Section 13 is the
sole repository qua appeals pertaining to commercial disputes and there can
be no appeals against judgments / orders / decisions in the said disputes,
other than as provided in
Section 13; (ii) the word “judgment” appearing in
Section 13(1) and Section 13(1A) actually relates or has a reference to a
decree; (iii) the word “order” in
Section 13(1) and Section 13(1A) would
have to be construed in the light of Section 2(14) of the CPC, as “a formal
expression of any decision of a Civil Court which is not a decree”; (iv) the
appealable orders would be only those which are specifically enumerated
under Order XLIII, as provided in the proviso to Section 13(1A) of the
Commercial Court Act; (v)
Section 13(2) begins with a non-obstante
expression “notwithstanding anything contained in any other law for the
time being in force or letters patent of a High Court…..”; the words “any
other law for the time being in force” would include the
Delhi High Court
Act, 1966; thus, whatever may be contained in the
Delhi High Court Act, an
appeal from any order or decree of a Commercial Division or Commercial
Court shall lie only in accordance with the provisions of the Commercial
Courts Act; (vi) since the order under appeal in that case was not
enumerated in Order XLIII of the CPC, the appeal was not maintainable;

EFA (OS)(COMM) No.4/2021 Page 24 of 51

and, (vii) the argument, that the word “judgment” in Section 13(1A) should
be construed in the wider sense, as in Shah Babulal Khimji Vs. Jayaben D.
Kaniya (1981) 4 SCC 8, could not be accepted; the words “judgment” and
“order”, in Section 13 of the Commercial Courts Act, have been used
disjunctively, in a mutually exclusive manner and “orders” could not be
brought under the fold of “judgments”; the interpretation in Shah Babulal
Khimji supra, of the word “judgment”, was in the context of letters patent
of the High Court and the non obstante clause in
Section 13(2) specifically
excludes the operation of letters patent of a High Court, insofar as the
appeals from any order or decree of a Commercial Division or a
Commercial Court are concerned. The said judgment was followed in
Samsung Leasing Ltd. supra as well as in Prasar Bharati Vs. Stracon
India Limited MANU/DE/1371/2020 by another Division Bench of this
Court. Our first query aforesaid, also stands answered by HPL (India) Ltd.
supra. Notwithstanding the aforesaid judgments of Co-ordinate Benches of
this Court, the Division Bench in DH India Ltd. supra, for reasons given
therein, held that the proviso after Section 13(1A) of the Commercial
Courts Act cannot be read as limiting the right of appeal conferred under
Section 13(1) and Section 13(1A) or as meaning that no appeal would lie in
any other case especially where the order under appeal had not been passed
under the CPC at all but under Rule 5 in Chapter II of the Delhi High Court
(Original Side) Rules, 2018; the Division Bench further gave reasons why
the need to refer the question to a larger bench was not felt.

25. Though we, with due deference to the members of the Division
Bench in DH India Ltd. supra, entertain doubts as to the correctness of
the view taken in DH India Ltd. but do not, in the facts of the present
EFA (OS)(COMM) No.4/2021 Page 25 of 51
case, feel the need to make a reference of the question to a larger bench; the
reason is, that Bhandari Engineers Builders Pvt. Ltd. supra, on which
the impugned orders are based, while laying down the law laid down
therein, also directs all Courts to abide thereby, resulting in plethora of
similar challenges as made herein and it is deemed expedient to settle the
law in that regard and which would remain pending if the question of
maintainability of the appeal were to be referred to a larger bench.

26. However before proceeding to the merits of the matter, we have to
also deal with, (A) the contention of the senior counsels for the judgment
debtors, with respect to the very jurisdiction of the Commercial
Courts/Commercial Divisions, to entertain petitions for execution of arbitral
awards, even if in respect of commercial disputes; and, (B) our second
query aforesaid vis-a-vis applicability of the proviso after Section 13(1A) of
the Commercial Courts Act, whether only to
Section 13(1A) or to also
Section 13(1).

27. As far as the latter of the aforesaid two is concerned, both, Section
13(1) and
Section 13(1A) use the same expression i.e. “judgment or order”,
with the only difference being, that
Section 13(1) provides for appeals
against the judgment or order of a Commercial Court below the level of a
District Judge, to the Commercial Appellate Court and
Section 13(1A)
provides for appeal against the judgment or order of a Commercial Court at
the level of the District Judge exercising Original Civil Jurisdiction or the
Commercial Division of the High Court. The first part of
Section 13 was
amended vide the Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts (Amendment) Act, 2018

EFA (OS)(COMM) No.4/2021 Page 26 of 51
with effect from 3rd May, 2018. Prior to the amendment,
Section 13(1)
provided for appeal against the decision of a Commercial Court or
Commercial Division of the High Court to the Commercial Appellate
Division of the High Court. The amendment to
Section 13, while splitting
up the erstwhile sub-section (1) of
Section 13 into two subsections, 13(1)
and 13(1A) as aforesaid, did not alter the proviso thereto, and the amended
proviso is in pari materia to erstwhile proviso to
Section 13(1). Though in
Delhi there are no Commercial Courts below the level of the District Judge
but since both,
Section 13(1) and Section 13(1A) provide for appeals arising
from commercial disputes and there being nothing in the proviso to indicate
that the same is applicable only to
Section 13(1A), we conclude that the
proviso applies to both,
Section 13(1) as well as Section 13(1A).

28. As far as the contention of the senior counsels for the judgment
debtors, of proceedings for execution of an arbitral award as a decree being
not within the jurisdiction of the Commercial Court / Commercial Division
of this Court is concerned, Section 10 of the Commercial Courts Act inter
alia provides that where the subject matter of an arbitration is a commercial
dispute of a specified value, all applications or appeals arising out of such
an arbitration under the provisions of the
Arbitration Act that have been
filed on the original side of the Court shall be heard and disposed of by the
Commercial Division, where such Commercial Division has been
constituted in the High Court. It is not in dispute that the subject matter of
the arbitration, award whereof is under execution, was of the specified
value. The arbitration concerned adjudication of rights and obligations
arising between the decree holder and the judgment debtors from
agreements entered into between them with respect to an industrial plot of
EFA (OS)(COMM) No.4/2021 Page 27 of 51
land at Sahibabad. While it was the contention of the decree holder that it
was an agreement for sale of the said land by the judgment debtors to the
decree holder, the judgment debtors contended the agreement to be a
Collaboration Agreement whereunder the decree holder had agreed to raise
construction on the land of the judgment debtors for the consideration of
sharing a portion of the constructed area. The arbitral award negates the
contention of the decree holder, of the agreement being of sale and has held
the decree holder to be only entitled to reimbursement of the amounts
incurred pursuant to the agreement. Such a dispute, under clauses (vi) and

(vii) of Section 2(1)(c) of the Commercial Courts Act read with Explanation

(a) thereto, constitutes a commercial dispute. Thus the subject matter of
arbitration in the present case was a commercial dispute of a specified
value, within the meaning of
Section 10 of the Arbitration Act. To be fair to
the senior counsels for the judgment debtors, they did not seriously
controvert the aforesaid. Their contention however was that since this
appeal does not arise out of arbitration under the provisions of the
Arbitration Act, within the meaning of Section 10(2) of the Arbitration Act,
the execution was not within the jurisdiction of the Commercial Division
and the appeal thereagainst does not lie to the Commercial Appellate
Division, under Section 13 of the Commercial Courts Act. It was further
contended that the
Arbitration Act is concerned only with the arbitration
proceedings and challenge to the arbitral award and is not concerned with
execution of the arbitral award, with the Act, in
Section 36 merely
providing for the award to be executed as a decree of the Civil Court in
accordance with the provisions of the CPC. It was contended that the
Execution Petition is thus not an application arising out of arbitration under

EFA (OS)(COMM) No.4/2021 Page 28 of 51
the
Arbitration Act, to be entertained by the Commercial Division of this
Court.

29. Needless to state, this question also was not raised before and has not
been considered by the Commercial Division in any of the orders in the
subject execution proceedings.

30. Though in appeal, ordinarily we would not allow a new plea to be
urged but finding the same to be of general importance, having application
in a large number of cases, proceed to do so.

31. Section 2(1)(c) defines “commercial disputes” as a “dispute” arising
out of agreements, transactions, relationships, of the nature specified in
various clauses thereunder. Sections 6 and 7 of the Commercial Courts Act
vest jurisdiction in the Commercial Court / Commercial Division, to try “all
suits and applications relating to commercial disputes of a specified value”.

32. According to the senior counsels for the judgment debtors, the
jurisdiction of the Commercial Courts / Commercial Divisions is only over
suits / arbitrations, subject matter whereof qualifies as a commercial dispute
and not over proceedings for execution of the decrees passed in the said
suits or over enforcement of awards passed in the said arbitrations. The
question which arises is, whether a claim made by one against the other and
controverted by the other, on adjudication thereof, whether by the Court or
by the Arbitrator, ceases to be a “dispute”, for it to be said that the
proceedings for execution of adjudication of a commercial dispute, whether
by way of a decree or an arbitral award, do not qualify as a “dispute”.

EFA (OS)(COMM) No.4/2021 Page 29 of 51

33. Section 2(1)(i) of the Commercial Courts Act defines “Specified
Value” in relation to a commercial dispute, as the value of a subject matter
in respect of a suit as determined in accordance with
Section 12. Reference
therein is thus expressly to a “suit”, as distinct from an “execution”.
Section 12 however refers to the specified value of the subject matter of the
commercial dispute in a suit, appeal or application. Thereby, the ambit of
specified value is increased, from that in
Section 2(1)(i), with reference to a
“suit” alone, to an appeal or an application also. Finally,
Sections 6 and 7,
while prescribing the jurisdiction of Commercial Courts and Commercial
Divisions, prescribe the said jurisdiction, to extend to try all suits and
applications relating to a commercial dispute, again, vesting the jurisdiction
in the Commercial Courts / Commercial Divisions, not only to try “suits”
but also “applications”.

34. The question which arises is, whether Execution Petitions are
“applications” within the meaning of Sections 10, 12, 6 and 7 of the
Commercial Courts Act.

35. “Dispute” is defined as a disagreement or argument between two
people. “Application” is defined as a formal written request.

36. It is not as if, on adjudication of a dispute, resulting in a judgment /
decree of a Court or award of an Arbitral Tribunal, the “dispute” between
the parties comes to an end or nothing remains to be adjudicated between
the parties. Section 47 of the CPC, in Part-II titled “Execution” itself, in
this respect provides that all questions arising between the parties to the suit
in which the decree was passed, or their representatives, and relating to
execution, discharge or satisfaction of the decree, shall be determined by the

EFA (OS)(COMM) No.4/2021 Page 30 of 51
Court executing the decree and not by a separate suit. It is evident therefrom
that a judgment or a decree of the Court or the award of an Arbitral
Tribunal, do not put an end to the “dispute” between the parties and it is not
as if execution is merely an administrative task, with no adjudication
involved. It would be incongruous to hold that the jurisdiction of the
Commercial Courts / Commercial Divisions extends only to adjudication of
commercial disputes till the stage of adjudication and not to adjudication of
commercial disputes arising in the course of execution. Once it is so, the
word “dispute” in
Section 2(1)(c) would extend to adjudication of disputes
arising during execution of arbitral awards subject whereof falls within the
jurisdiction of the Commercial Courts Act and the Commercial Court and
Commercial Division would also have jurisdiction over the applications for
execution of arbitral awards of a specified value, subject matter whereof
was a commercial dispute.

37. There is another aspect. A claimant in a dispute is not interested
merely in adjudication thereof. The claimant is interested in delivery to
him, of what he claims to be due and what has been adjudicated to be due to
him from the opposite party. The Commercial Courts Act, as laid down in
HPL (India) Ltd. supra also, was enacted to provide for speedy disposal of
high value commercial disputes and their early resolution. The resolution
of a commercial dispute is not complete, till the fruit thereof is in the hands
of whosoever is found to be entitled thereto. Supreme Court also recently
in Rahul S. Shah Vs. Jinendra Kumar Gandhi 2021 SCC OnLine SC 341
has lamented on the troubles of the decree holder, in not being able to enjoy
the fruits of litigation on account of inordinate delay caused during the
process of execution of the decree and has referred to the observations in a
EFA (OS)(COMM) No.4/2021 Page 31 of 51
judgment of 1872 vintage of the Privy Council in the General Manager of
the Raja Durbhunga Vs. Maharaja Coomar Ramaput Singh 1872 SCC
OnLine PC 16, that the actual difficulties of a litigant in India begin when
he has obtained a decree. This being the state of affairs, to hold that the
jurisdiction of the Commercial Courts / Commercial Division does not
extend to execution but ends with adjudication, would defeat the very
purpose and object of the Commercial Courts Act i.e. of speedy disposal
and resolution of commercial disputes of a specified value. To hold that the
Commercial Courts / Commercial Divisions would not have jurisdiction
over applications for execution of a judgment or decree or for enforcement
of an arbitral award, subject matter whereof was a commercial dispute,
would in our opinion sound the death knell for the objective behind setting
up of the Commercial Courts and the Commercial Divisions.

38. One of us (Rajiv Sahai Endlaw, J.) sitting singly, in Bayer
Intellectual Property GMBH Vs. Symed Laboratories Ltd. 2019 SCC
OnLine Del 7410 also held that if the decree is of a Commercial Court, its
execution will lie in a Commercial Court only and would not lie in an
Ordinary Civil Court which has jurisdiction to entertain suits of a non-
commercial nature and that an application or execution of a decree in a
commercial suit would lie in a Commercial Court only.

39. Order XXI Rule 11(2) of the CPC provides that every „application‟
for execution of a decree shall be in writing, signed and verified. Thus the
CPC, in accordance wherewith an arbitral award is to be executed/enforced,
envisages such execution to be by way of an „application‟ and since the
jurisdiction of the Commercial Courts / Commercial Divisions extends vide

EFA (OS)(COMM) No.4/2021 Page 32 of 51
Sections 6 and 7 of the Commercial Courts Act extends, besides over suits,
also over applications relating to commercial disputes, such jurisdiction
would also extend over execution applications. Similarly, in respect of
arbitration matters subject matter whereof is a commercial dispute, the
jurisdiction of the Commercial Courts / Commercial Divisions, vide
Section
10(2) extends to “…all applications ….arising out of such arbitration”.
Since “dispute” does not come to an end till what has been found due in
arbitration to the claimant is in the hands of the claimant, an application for
enforcement of the arbitral award arises from arbitration, within the
meaning of Section 10(2) of the Commercial Courts Act.
Section 36 of the
Arbitration Act provides for enforcement of the arbitral award in
accordance with the provisions of the CPC, in the same manner as if it were
a decree of the Court. Execution of a decree of the Court, per Section 38 of
the CPC, has to be by the same Court which passed the decree. Since the
jurisdiction over arbitrations subject matter whereof is a commercial
dispute, is of the Commercial Courts / Commercial Divisions, applying
Section 38 of the CPC, the jurisdiction for enforcement of awards of
arbitration subject matter whereof is a commercial dispute, has to be of the
Commercial Courts / Commercial Divisions.

40. The argument of the senior counsels for the judgment debtors, that
Commercial Courts / Commercial Divisions do not have jurisdiction over
executions because there is no specified value of the execution applications
also stands negated vide Section 38 of the CPC which provides for
jurisdiction for execution to be of the same Court which passed the decree.
The “specified value” has been defined in Section 2(i) of the Commercial

EFA (OS)(COMM) No.4/2021 Page 33 of 51
Courts Act, of the commercial dispute and an application for execution, as
aforesaid, arises therefrom.

41. We are thus unable to accept the arguments of the senior counsels for
the judgment debtors that the application for execution of an arbitral award
subject matter whereof was a commercial dispute does not lie before the
Commercial Court or the Commercial Division and lies before the ordinary
original civil court and this appeal would thus not be governed by the
provisions of Section 13 of the Commercial Courts Act.

42. During the hearing, we had also wondered whether holding that the
appeals arising from orders made in the course of execution proceeding to
be also governed by Section 13 of the Commercial Courts Act would result
in no appeal whatsoever lying from any order or judgment in a proceeding
for execution of a judgment, decree or arbitral award in a commercial
dispute. We however find it to be not so. Rules 46H and 103 of Order XXI
of the CPC provide for adjudication of the disputes specified therein to be
having the force of a decree and which would then be appealable as a
judgment within the meaning of Section 13 of the Commercial Courts Act,
in accordance with HPL (India) Ltd. supra. Similarly, it is not as if Order
XLIII of the CPC, to orders specified wherein the right of appeal against
orders is confined by the proviso after
Section 13(1A), does not cater to any
orders in the course of an execution. Order XLIII Rule 1(j) and (ja) provide
for appeals against orders passed in the course of an execution proceeding.
Of course, an order under Order XXI Rule 41 is not covered therein but in
view of the dicta of this Court in DH India Ltd. supra, the appeal against
such an order would also be maintainable.

EFA (OS)(COMM) No.4/2021 Page 34 of 51

43. We thus hold the appeal to be maintainable and now proceed to the
merits of the challenge.

44. Before proceeding further in the matter, we would be failing in our
duty if do not mention that one of us (Rajiv Sahai Endlaw, J.) sitting singly,
in M.L. Gupta supra decided on 22nd February, 2018 and attention whereto
does not appear to have been invited during the hearing of Bhandari
Engineers Builders Pvt. Ltd. supra, had occasion to deal with Order XXI
Rule 41 of the CPC and referring to various precedents, held that (i) for an
Execution Petition to be said to be validly filed, furnishing of particulars
under Order XXI Rule 11(2)(j) i.e. of the mode in which assistance of the
Court is required, is mandatory, unless the reasons for seeking exemption
from furnishing such particulars are set out and the Court is satisfied
therewith; (ii) Order XXI Rule 17 of the CPC also requires the Court to
ascertain whether the requirements of Rules 11 to 14, as may be applicable
to the case, have been complied with or not and if they have not been
complied with, allow the defect to be remedied and if not remedied, to
reject the Execution Petition; (iii) though the language of Order XXI Rule
41 of the CPC is wide but cannot be interpreted as widely as to hold that in
every case the decree holder, instead of doing its spadework i.e. setting out
the mode in which assistance of the Court is required, simply ask for notice
to be issued; if the same were to be permitted, it would nullify Order XXI
Rule 11(2)(j) which requires such particulars to be furnished and Order XXI
Rule 22 of the CPC which does not mandate notice of execution to be
issued when applied for within two years of the date of the decree; issuing
of such notice leads to avoidable delays.

EFA (OS)(COMM) No.4/2021 Page 35 of 51

45. As aforesaid, challenge to the merits of the impugned orders would
require us to deal with Bhandari Engineers Builders Pvt. Ltd. supra.
(pronounced on 5th December, 2019) as well as judgments/orders therein,
dated 11th January, 2016 reported as MANU/DE/0535/2016, dated 5th
February, 2019 reported as 2019 SCC OnLine Del 11879, and dated 5th
August, 2020 reported as MANU/DE/1497/2020. Having gone through all
the four, we cull out hereunder the conclusions and the law laid down in the
four judgments.

46. In the first judgment dated 11th January, 2016, it was held, “in cases
of execution of decree for recovery of money, it would be appropriate to
direct the judgment debtor, at the initial stage itself, to file the affidavit of
assets as on the date of institution of the suit as well as of the current date
i.e. the date of swearing the affidavit in Form 16A, Appendix-E under Order
XXI Rule 41(2) of the Code of Civil Procedure along with statement of all
their bank accounts for the last three years within 30 days of the receipt of
the notice and to remain present for being orally examined under Order XXI
Rule 41(1) of the Code of Civil Procedure”. It further held that if the
judgment debtor‟s affidavit does not truly or sufficiently disclose his assets,
further affidavit can be directed to be filed with the details listed therein.
In the second judgment dated 5th February, 2019, the Court noticed the
delays and difficulties in execution of decrees / awards and the erosion of
public confidence and trust in judgment delivery system and opined on the
need for special attention being bestowed to expeditious disposal of
execution proceedings. After opining so, the Court proceeded to hold /
observe, that (i) if the decree holder is aware of the assets of the judgment
debtor, the Court can attach such assets at the very threshold of the
EFA (OS)(COMM) No.4/2021 Page 36 of 51
execution proceeding and proceed to sell the same; (ii) however if the
decree holder is not aware of the complete assets and income of the
judgment debtor, the executing court, under Order XXI Rule 41(2) has
power to direct the judgment debtor to disclose his assets in Form 16A,
Appendix-E of the CPC; (iii) however Form 16A, Appendix-E in the CPC
was not exhaustive, to ascertain all the assets of the judgment debtor and as
a result whereof the execution proceedings were found to be lingering at the
mercy of the judgment debtor; (iv) in several other countries, the law
prescribes a comprehensive format of assets, income and expenditure to be
filed by the judgment debtor; (v) there was thus an urgent need to formulate
a detailed format of assets, income and expenditure, to be filed by the
judgment debtor at the threshold of the execution proceedings; (vi) Section
151 of the CPC empowers the Court to make such orders as would be
necessary to secure ends of justice or to prevent abuse of the process of the
Court; and, (vii)
Article 227 of the Constitution of India also confers on the
Court the power of superintendence over subordinate courts. After
observing so, the Court, in purported exercise of power under
Section 151
and Order XXI Rule 41 of the CPC read with
Sections 106 and 165 of the
Indian Evidence Act and
Article 227 of the Constitution of India, proceeded
to formulate/draft an affidavit of assets and income, to be mandatorily filed
by the judgment debtor in execution proceedings. Though the Court, in the
earlier part of the judgment had noted that the need for directing such
affidavit to be filed would arise only when the decree holder was not aware
of the assets of the judgment debtor, but in the concluding portion of the
judgment, the Court proceeded to issue a direction to all courts executing a
decree for recovery of money, to, in the first instance direct the judgment

EFA (OS)(COMM) No.4/2021 Page 37 of 51
debtor to file the affidavit in the form as drafted by the Court and directed
the copy of the said judgment to be circulated to all the Courts and others
concerned. Vide the third judgment dated 5th December, 2019, certain
modifications were carried out in the format devised in the preceding
judgments. Finally, in the last judgement dated 5th August, 2020, after
receiving the suggestions from Trial Courts and Members of the Bar, the
guidelines laid down in the earlier judgments were further modified and
made comprehensive.

47. We will first deal with the sources in law, from which the learned
Judge authoring Bhandari Engineers Builders Pvt. Ltd. supra drew
power, to draft and prescribe the format of the affidavit and to mandate all
courts dealing with proceedings for execution of money decree, to, even in
the absence of any application of the decree holder, at the very first
instance, on its own, direct the judgment debtor/s to file affidavit in the said
format.

48. The first source of power referred to, is Section 151 of the CPC.
Section 151 however merely saves the inherent power of the Court and
provides that nothing in the CPC shall be deemed to limit or otherwise
affect the inherent powers of the Court to make such orders as may be
necessary for the ends of justice or to prevent abuse of the process of the
Court. The exercise of power under
Section 151 is however restricted to the
facts of a particular case before the Court and does not extend to issuing any
general direction, to be abided by all courts in all cases of execution of
money decree. Thus, in exercise of power under
Section 151, the Court, in
Bhandari Engineers Builders Pvt. Ltd. supra, could have made / pass

EFA (OS)(COMM) No.4/2021 Page 38 of 51
order/s only to meet the ends of justice or to prevent the abuse of the
process of Court, in the facts of that case and could not have issued a
mandate or direction of a general nature. In Padam Sen Vs. State of UP
AIR 1961 SC 218, reiterated in Vinod Seth Vs. Devinder Bajaj (2010) 8
SCC 1, it was held that “The inherent powers saved by Section 151 of the
Code are with respect to the procedure to be followed by the Court in
deciding the cause before it”. Not only so, it has also been held in Padam
Sen supra, Ram Chand and Son Sugar Mills Private Ltd. Vs. Kanhayalal
Bhargava AIR 1966 SC 1899, Nain Singh Vs. Koonwarjee (1970) 1 SCC
732, P.A. Ahammed Ibrahim Vs. Food Corporation of India (1999) 7 SCC
39, Shipping Corporation of India Ltd. Vs. Machado Brothers (2004) 11
SCC 168, Durgesh Sharma Vs. Jayshree (2008) 9 SCC 648, Vinod Seth
supra and in Ram Prakash Agarwal Vs. Gopi Krishan (2013) 11 SCC 296,
that the exercise of power under
Section 151 extends to only such situations
for which no provision is made in the CPC or in any other law and in
exercise of powers under
Section 151, the Court cannot pass orders in
violation of or contrary to the provisions of the Code. Thus, for the Court /
Commercial Division in Bhandari Engineers Builders Pvt. Ltd. supra, to
exercise powers under Section 151 of the CPC, it was necessary for the
Court/Commercial Division to first hold that there was no provision in the
CPC or any other law to meet the exigency which had arisen.

49. Not only did the Commercial Division in Bhandari Engineers
Builders Pvt. Ltd. supra not hold so but has itself in the judgment referred
to Order XXI Rule 41 of the CPC and rather identified that also as a source
of power to do what has been done therein. Order XXI Rule 41 read with
Form 16A in Appendix-E of the CPC and Order XLVIII Rule 3 of the CPC
EFA (OS)(COMM) No.4/2021 Page 39 of 51
are precisely for the same exigency with which the learned Judge in
Bhandari Engineers Builders Pvt. Ltd. supra was concerned i.e. holder
of a money decree being unaware of the assets of the judgment debtor.
Order XXI Rule 41 of the CPC enables such a decree holder to apply
thereunder to the Court for a direction to the judgment debtor to disclose his
assets and further empowers the Court to direct the judgment debtor to
disclose his assets in Form 16A in Appendix-E of the CPC. Though Order
XLVIII Rule 3 permits the Court to order variation in the forms given in the
appendices to CPC but only to the extent “as the circumstances of each case
may require”. Thus, under Order XLVIII Rule 3 of the CPC, as rightly
contended by the senior counsels for the judgment debtors, the Court,
though is empowered to, in a particular case direct the judgment debtor to
file affidavit of assets in Form-16A with such variations as may be ordered
as per the exigencies in that case, but again has no jurisdiction to prescribe a
variation generally, for all cases of execution of money decrees. Thus, with
respect to the learned Judge, we are unable to identify Order XXI Rule 41
also as a source of power for directing / mandating, what has been directed /
mandated in Bhandari Engineers Builders Pvt. Ltd. supra.

50. Not only so, though Order XXI Rule 41 prescribes a direction
thereunder to be only on an application of the decree holder and when the
decree has remained unsatisfied for a period of 30 days, the learned Judge,
in contradiction thereto, has directed all Courts executing money decrees,
to, even without any application and on the threshold, direct judgment
debtor/s to file affidavits as enunciated in the said judgment. Though Order
XXI Rule 41(2) does not prescribe the date from which the period of 30
days for satisfaction of the decree is to be counted but in the context thereof,
EFA (OS)(COMM) No.4/2021 Page 40 of 51
the said period of 30 days cannot be from the date of the decree and has to
be necessarily from the date when effort has been made for executing the
decree and which efforts have not borne any fruit.

51. Neither under Section 151 nor under Order XXI Rule 41 of the CPC,
the Court has any power to direct anything to be done in any other manner
than as prescribed in the Code. It is settled law that inherent powers may be
exercised in those cases where there is no express provision in the Code; the
said power cannot be exercised in contravention or in conflict of or ignoring
express and specific provisions of law. Inherent powers will not be
exercised if its exercise is inconsistent with or comes into conflict with any
of the powers expressly or by necessary implication conferred by the
provisions of the Code; if there are express provisions exhaustively
covering a particular topic, they give rise to necessary implication that no
power shall be exercised in respect of the said topic otherwise than in the
manner prescribed by the said provisions.
Section 151 cannot be invoked to
nullify the procedure prescribed under the Code. Inherent jurisdiction of
the Court must be exercised subject to the Rule that if the Code does
contain specific provisions which would meet the necessities of the case,
such provision should be followed and inherent jurisdiction should not be
invoked.
Section 151 cannot be invoked where a party has his remedy
provided in the Code and has neglected to avail himself of the same.

52. The High Court of Bombay, as far back as in Bachubai Manjrekar
Vs. Raghunath Ghanshyam Manjrekar MANU/MH/0159/1941 held that
except in very exceptional circumstances the Courts should never make an
order under Order XXI Rule 41 of the CPC, without in the first instance

EFA (OS)(COMM) No.4/2021 Page 41 of 51
giving notice to the party against whom an order is sought. We respectfully
concur therewith. In view of the said express provision in the CPC, as
aforesaid, in exercise of powers under
Section 151 no direction in
contravention thereof could have been issued.

53. The next Source of power relied upon by the Court in Bhandari
Engineers Builders Pvt. Ltd. supra, is
Sections 106 and 165 of the Indian
Evidence Act.
Section 106 provides that where any fact is especially within
the knowledge of any person, the burden of proving that fact is upon that
person.
Section 165 empowers the Court to ask any question at any time to
any party about any fact relevant or irrelevant. The powers under the said
provisions also, are to be exercised in the facts of a particular case and do
not extend to issuing a general direction. The powers under
Section 106
and
165 of the Evidence Act have to be construed harmoniously with the
provisions of the CPC. CPC requires a decree holder to, while applying for
execution, plead the manner in which assistance of the Court is required
and, if seeking execution of a money decree, to append to the execution
petition, a list of moveable and immovable property of the judgment
debtor/s, from attachment and sale whereof monies under the decree can be
realized. To take care of a situation where the decree holder, inspite of
reasonable efforts, is unable to give particulars of such assets, Order XXI
Rule 41 enables such decree holder to apply to the Court for a direction to
the judgment debtor/s to disclose assets from attachment and sale whereof
the money decree can be satisfied. Once such specific provisions have been
made in Order XXI Rule 41 read with Form 16A, Appendix-E read with
Order XLVIII Rule 3 of the CPC, the Court, in exercise of powers under
Sections 106 and 165 cannot act in contravention thereof. It is even
EFA (OS)(COMM) No.4/2021 Page 42 of 51
otherwise a settled principle of law, that once law requires a particular thing
to be done in a particular manner, then, in order to be valid, the act must be
done in prescribed manner alone and in no other manner. Reference in this
regard may be made to State of Uttar Pradesh Vs. Singhara Singh AIR
1964 SC 358, Dhanajaya Reddy Vs. State of Karnataka (2001) 4 SCC 9,
Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala
(2002) 1 SCC 633, Captain Sube Singh Vs. Lt. Governor of Delhi (2004) 6
SCC 440, Kunwar Pal Singh Vs. State of U.P. (2007) 5 SCC 85 and State
of Kerala Vs. Kerala Rare Earth and Minerals Limited (2016) 6 SCC 323.

54. The Court, in Bhandari Engineers Builders Pvt. Ltd. supra has
lastly drawn power from
Article 227 of the Constitution of India, to issue
the directions as issued therein.
Article 227 vests in every High Court, the
power of superintendence over all Courts and Tribunals throughout its
territory, in relation to which it exercises jurisdiction and to make and issue
general rules and prescribe format for regulating the practice and
proceedings of such Court. It cannot be lost sight of, that the power
thereunder is vested in the “High Court” and which, in our view, would
mean the “Full Court” comprising of all the Judges of the High Court and
not in individual Judges presiding over different benches as per the roster
allocation by Hon‟ble the Chief Justice. Though, in dealing with the cases
in their roster, the individual Judges presiding over separate benches are
empowered to exercise powers vested under
Article 227 in the facts of that
case but are not empowered to lay down any general direction for all
matters of a particular kind or to be abided by all Courts. Such power can
be exercised only by the Full Court and not by individual Judges. If
Article
227 were to be interpreted as enabling individual Judges of the High Court
EFA (OS)(COMM) No.4/2021 Page 43 of 51
to issue general Rules and prescribe forms for regulating the practice and
proceedings of the Court, the same would be fraught with difficulties, with
different benches of the High Court issuing contradictory directions relating
to the same matter, thereby defeating rather than serving the purpose of
Article 227 of the Constitution of India.

55. In this regard, we may also mention that Part X titled “Rules”
comprising of
Sections 121 to 130, of the CPC, vide Section 122 empowers
the High Court to, after previous publication, make Rules regulating their
own procedure and the procedure of the Civil Courts subject to their
superintendence and to, by such Rules annul, alter or add to all or any of the
Rules in the first schedule of the CPC comprising of Order I to Order LI
and Appendices A to H.
Section 123 mandates each High Court to
constitute a Rule Committee, for exercising powers vested under Section

122. Section 124 provides for the report of the Rules Committee to be
placed before the “High Court”.
Section 125 and Section 126 provide for
consultation and approval of the State Government in the exercise of such
powers by the High Court and
Section 127 provides for publication of such
Rules made by the High Court. In our opinion, the said provisions also
illustrate the manner in which the power under
Article 227 is to be
exercised by the High Court i.e. by all the Judges of the High Court and not
by individual benches of the High Court. The Chief Justice of this Court, in
exercise of powers under
Section 130 read with Section 123 of the CPC, has
constituted a Committee to make Rules within the ambit of Part X of the
CPC and the recommendations of which Committee are placed by Hon‟ble
the Chief Justice before the Full Court for consideration and only on
approval by the Full Court, are forwarded to the State Government for their
EFA (OS)(COMM) No.4/2021 Page 44 of 51
approval. The procedure followed in Bhandari Engineers Builders Pvt.
Ltd. supra for laying down Rules of general application binding on all
Courts executing a money decree, also defeat the requirement of
Section
130, of the Rules being formulated only with the approval of the State
Government. We may highlight that though in exercise of powers under
Part X of the CPC, this Court is empowered to annul or vary Order XXI
Rule 41 read with Form 16A in Appendix-E read with Order XLVIII Rule
(3) of the CPC, as has been done in Bhandari Engineers Builders Pvt.
Ltd. supra, but only after following the procedure prescribed therein. Thus,
if any individual Judge of the High Court, in the course of adjudication of a
particular lis or otherwise is of the opinion of the need for any change to be
made in the procedure prescribed in any of the Orders in Schedule I of the
CPC, the same has to be put up to Hon‟ble the Chief Justice for, if so
desires, forwarding the same to the Rules Committee for considering the
proposal. The Hon‟ble Judge, in Bhandari Engineers Builders Pvt. Ltd.
supra, if felt any need for any change to be made in Order XXI Rule 41 or
in Form 16A in Appendix-E, with all due respect, could not have proceeded
to do the same himself and was required to refer the same to Hon‟ble the
Chief Justice, to, if so deemed fit, place the matter for consideration, first by
the Rules Committee, which is a statutory committee as aforesaid, and
thereafter by the Full Court. The aforesaid provisions having prescribed the
procedure for formulating Rules and / or for making changes in Orders I to
LI and Appendix A to H to the CPC, Rules / changes could not be made
without following the said procedure.

EFA (OS)(COMM) No.4/2021 Page 45 of 51

56. We may notice that the Supreme Court, in Rahul S. Shah supra also,
though has felt the need for changes in the procedure for execution, has
only directed the High Courts to reconsider and update the Rules in exercise
of powers under
Article 227 read with Section 122 of the CPC.

57. We are thus of the view that Bhandari Engineers Builders Pvt.
Ltd. supra, to the extent extends what is laid down therein to execution
proceedings pertaining to all money decrees and to all courts executing a
money decree, cannot said to be good law. Axiomatically, what is held in
Bhandari Engineers Builders Pvt. Ltd. supra could not have been
followed in the execution proceedings from which this appeal arises.

58. Once it is so, the impugned orders have no other reason whatsoever
for directing the judgment debtors to file the affidavits and which are liable
to be set aside on this ground alone.

59. In view of the aforesaid, need is not felt in this case to give other
reasons for disagreeing with what has been held in Bhandari Engineers
Builders Pvt. Ltd. supra. Suffice it is to say that considerable merit is found
in the arguments propounded by the senior counsels for the judgment
debtors and some of which arguments have also been accepted by us while
propounding on the powers of the Court to lay down Rules of general
application.

60. As far as the facts of the present case are concerned, the respondent
no.1 / decree holder was aware of the moveable and immovable assets of
the appellants / respondent no.2 / judgment debtor and furnished particulars
thereof in the schedule to the Execution Petition (and one of which
immovable assets in terms of the arbitral award was in possession of the

EFA (OS)(COMM) No.4/2021 Page 46 of 51
decree holder) and sought assistance of the Court in execution of the arbitral
award as a decree of the Court, by attachment and sale of the said assets.
The Commercial Division acting as the executing court, on presentation of
the Execution Petition, if preferred within two years of the date of
publication of the arbitral award, was thus required to immediately attach
any one of the said properties from which the decretal amount could be
recovered and to on the next date, proceed with sale thereof. Instead, the
Commercial Division, without there being any need thereof, proceeded to
issue direction to the judgment debtors to disclose their assets. We
reiterate, that there was no need therefor once the particulars of the assets
were already before the Court and the decree holder also rightly had not
applied. All this, rather than expediting execution, has delayed the cause of
the decree holder. Surprisingly, the decree holder did not oppose such
directions, which were resulting in delaying recoveries of the monies due to
the decree holder under the arbitral award and of recovery whereof there
was no stay.

61. As far as the contention of the senior counsels for the judgment
debtors, that the decree holder being already in possession of one of the
immovable properties of the judgment debtors, was not entitled to proceed
with the execution, is concerned, no merit is found therein. Being in
possession of one of the properties of the judgment debtors and which
property is a plot of land, does not put the monies found due to the decree
holder under the arbitral award, in the pocket of the decree holder. The
decree holder cannot be expected to sit quiet till the judgment debtor opts to
take possession of the said property.

EFA (OS)(COMM) No.4/2021 Page 47 of 51

62. As per the existing provisions of Order XXI Rule 41 of the CPC, the
Commercial Division, in our view erred in issuing direction to judgment
debtors to file affidavits and affidavits in a form other than as prescribed in
the CPC. The impugned orders do not record that the decree holder had
applied therefor, verbally or in writing. A direction under Order XXI Rule
41 could not have been issued without the decree holder applying therefor.
Such direction could not have been issued without, inspite of taking steps
and owing to obstruction by the judgment debtor, the decree remaining
unsatisfied. No reason whatsoever has been given in the impugned orders as
to why the directions as issued were called for in the facts of the case or
why affidavit in the form prescribed in the CPC could not have sufficed.

63. Merit is also found in the contentions of the senior counsels for the
judgment debtors, that direction to judgment debtor/s in terms of Bhandari
Engineers Builders Pvt. Ltd. supra, in all cases of execution of money
decrees, irrespective of the need therefor, causes prejudice to the judgment
debtor/s and is in breach of right of privacy of the judgment debtor/s.
Merely because a person has a money decree against him, does not make
the said person susceptible in law to a roving and fishing enquiry into all his
affairs; such a person, in law, can be compelled to disclose to only such
extent as may be necessary for execution of the decree against him. The
principles, as enunciated in Jolly George Varghese Vs. The Bank of
Cochin (1980) 2 SCC 360, that arrest and detention in civil prison of the
judgment debtor in execution of a money decree is to be resorted to only
when the judgment debtor, inspite of having means to satisfy the decree is
found to have arranged his affairs to defeat the decree, can be invoked. It
was held therein that the high value of human dignity and the worth of the
EFA (OS)(COMM) No.4/2021 Page 48 of 51
human person enshrined in
Article 21 read with Articles 14 and 19 of the
Constitution of India obligates the state not to incarcerate except under law
which is fair, just and reasonable in its procedural essence; to cast the
person in prison because of his poverty and consequent inability to meet his
contractual liability, was held to be appalling. Applying the said principles,
a judgment debtor in a money decree, cannot in a routine manner, be
directed to disclose all the information as has been directed to be disclosed
in the affidavits formulated in Bhandari Engineers Builders Pvt. Ltd.
supra and which information indeed is far reaching, affecting the
substantive rights of the judgment debtor. In Vinod Seth supra it was held
that Section 151 of the CPC is not a provision of law conferring power to
grant any kind of substantive relief; it is a procedural provision saving the
inherent power of the Court to make such orders as may be necessary for
the ends of justice and to prevent abuse of the process of the Court; it
cannot be used either to create or recognize rights or to create liabilities and
obligations not contemplated in law. It was further held that the inherent
powers saved by Section 151 of the CPC are with respect to the procedure
to be followed by the Court and are not powers over the substantive rights
which any litigant possesses. It follows, that the Court, without giving
reasons in the facts of a particular case, cannot infringe substantive rights of
privacy of an individual merely because he happens to be a judgment debtor
under a money decree. Though the purpose with which the Court in
Bhandari Engineers Builders Pvt. Ltd. supra proceeded to issue
directions in general, i.e. to ensure that monies under a decree are realized
at the earliest, is laudatory but we are afraid, the Court proceeded beyond its
powers and jurisdiction.

EFA (OS)(COMM) No.4/2021 Page 49 of 51

64. No merit is found in the contention of the counsel for the respondent
no.1 / decree holder, that the judgment debtors having not challenged the
order dated 3rd December, 2019, are not entitled to challenge the subsequent
orders. The order dated 3rd December, 2019 stood substituted by the order
dated 23rd December, 2019 and not challenging the order dated 3 rd
December, 2019 which ceased to exist, cannot deprive the judgment debtors
from challenging the order dated 23rd December, 2019. Similarly, no merit
is found in the argument, that the judgment debtors, in the review petition
having themselves, in the alternative having offered to furnish particulars
with respect to which confidentiality was claimed in a sealed cover, are not
entitled to maintain the appeal. The primary / first relief claimed in the
review petition having been declined, the judgment debtors are within their
right to challenge the denial thereof. Law permits a litigant to claim reliefs
in alternative and merely because a relief claimed in the alternative has been
granted cannot come in the way of impugning the denial of primary / first
relief.

65. Resultantly, the impugned orders, to the extent directing the
judgment debtors to file additional affidavits or for that matter affidavits in
any form, in exercise of powers under Order XXI Rule 41 of the CPC, are
set aside.

EFA (OS)(COMM) No.4/2021 Page 50 of 51

66. The appeal is disposed of. No costs.

67. The Commercial Division to now proceed with the execution of the
decree in accordance with law.

RAJIV SAHAI ENDLAW, J.

AMIT BANSAL, J.

JULY 05, 2021
„gsr‟..

EFA (OS)(COMM) No.4/2021 Page 51 of 51

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