# Vipul Agarwala v. M/s Atul Kanodia & Company

- **Citation:** (2004) 1 ILRA 27
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-09-12
- **Case number:** Civil Revision No. 290 of 2003
- **Bench:** Janardan Sahai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vipul-agarwala-v-m-s-atul-kanodia-company-40261
- **Pages:** 4

## Headnote

Code of Civil Procedure 1908, Secs. 51,
115-C.P.C. order XXI Rule 11-A, 40, 41Execution
by
detention
reasons
for
passing such order-whether to be stated
in applications and affidavits under Rule
11-A- Held, it is enough to state the
grounds broadly-all reasons to be stated
only under Rule 41 and under Rule 40.

Held- Para 3 and 4

If all the material on which the court is
to pass an order for civil detention is to
be stated in the application and affidavit
contemplated in Rule 11-A the provision
of Rule 41 would be virtually redundant-
a view which but for compelling reasons
can not be taken. Interpreted in this
light I am of the view that at the stage of
the application and affidavit under Rule
11-A it is enough to state broadly the
grounds
on
which
execution
by
detention is sought. These grounds can
be supplemented and supported by
material which may become available by
execution of the judgement debtor or
from his affidavit under Rule 41 or from
the evidence led by the parties under
Rule

## Text

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1 All] Vipul Agarwala V. M/s Atul Kanodia & Company
27
ground of his continuous absence. It is not
a case where the petitioner was not
responding to the show cause notice or
was not reporting without any cause.
Petitioner's services, as such, could not be
terminated
without
initiating
and
concluding a disciplinary enquiry.

10. For the aforesaid reasons, the
writ petitions succeeds and is allowed.
The impugned order dated 20.11.2002
(annexure-7 to the writ petitioner) passed
by the Managing Director is set aside.
Petitioner shall be reinstated in service
with all consequential benefits. It will be
open
to
the
respondents
to
take
disciplinary action against the petitioner
in accordance with Service Rules.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.9.2003

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Civil Revision No. 290 of 2003

Vipul Agarwala

...Petitioner
Versus
M/s Atul Kanodia and Company

 ...Respondents

Counsel for the Revisionist:
Sri Shashi Nandan
Sri Ashutosh Srivastava
Sri A.K. Mehrotra

Counsel for the Respondent:
Sri S.K. Gupta

Code of Civil Procedure 1908, Secs. 51,
115-C.P.C. order XXI Rule 11-A, 40, 41Execution
by
detention
reasons
for
passing such order-whether to be stated
in applications and affidavits under Rule
11-A- Held, it is enough to state the
grounds broadly-all reasons to be stated
only under Rule 41 and under Rule 40.

Held- Para 3 and 4

If all the material on which the court is
to pass an order for civil detention is to
be stated in the application and affidavit
contemplated in Rule 11-A the provision
of Rule 41 would be virtually redundant-
a view which but for compelling reasons
can not be taken. Interpreted in this
light I am of the view that at the stage of
the application and affidavit under Rule
11-A it is enough to state broadly the
grounds
on
which
execution
by
detention is sought. These grounds can
be supplemented and supported by
material which may become available by
execution of the judgement debtor or
from his affidavit under Rule 41 or from
the evidence led by the parties under
Rule
40.
While
interpreting
these
provisions it has to be borne in mind that
after the decree the judgement debtor
may try to camouflage his assets and
properties and it may only be after the
curtain is removed by examining him or
looking into the books of his business
that the assets in his possession become
visible. That apart till date no order of
detention has been passed.

It may also be taken note of that as yet
final order for the arrest and detention of
the applicant in civil prison has not been
passed. It is only at that stage after the
examination under Rule 41 or evidence
under Rule 40 that reasons are required
to be recorded at the stage of ordering
execution by detention. The revision has
no merit. Dismissed.
Case Law discussed:
AIR 1964 Alld. 378
AIR 1981 Del. 114

(Delivered by Hon'ble Janardan Sahai, J.)

1. An award of the Arbitrator
Tribunal under the Arbitration and
Conciliation Act, 1996 was given against
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the applicant on 17.11.1999 for a sum of
Rs. 28 lacs Objections of the applicant
under section 34 of the Act against the
award were dismissed on 16.1.2003. The
appeal against that order was also
dismissed on 7.3.2003. The decree was
then put into execution. By the impugned
order the District Judge, Kanpur Nagar
has ordered for the oral examination of
the petitioner under Order 21 Rule 41
C.P.C. to disclose what assets and means
he has to satisfy the decree.

2. I have heard Sri Shashi Nandan,
learned counsel for the applicant and Sri
S.K. Gupta, learned counsel for the
respondents.

It is submitted by Sri Shashi Nandan
that the execution application filed by the
respondents was defective in as much as
the details of the properties of the
judgement debtor were not given therein
nor the reasons for requiring the arrest
and detention of the applicant were
disclosed and no affidavit as required
under Order 21 Rule 11-A C.P.C. was
filed. It appears that originally a warrant
of arrest was issued against the applicant
but the applicant of himself appeared
before the executing court and as such the
warrant was withdrawn. Objections being
raised by the applicant that the execution
application did not meet the requirement
of law, affidavit was filed by the
judgement debtor on 17.4.2003. Sri
Shashi Nandan submits that the grounds
why the arrest and detention of the
applicant is required have not been
disclosed
even
in
the
affidavit
subsequently filed. Sri Shashi Nandan
also placed before me the finding of the
executing
court
that
the
execution
application did not contain the reasons for
requiring the arrest of the applicant.
Reference
has
been
made
by
the
executing court in its order to the affidavit
of the decree holder in which it has been
observed with reference to it that the
provisions of Order 21 Rule 11-A C.P.C.
have been complied with. I have seen the
affidavit filed by the respondent. It is
stated therein that the applicant is carrying
on business and has the means to pay the
money. In view of this averment it can not
be said that no ground for requiring the
arrest and detention of the judgment
debtor was given in the affidavit.

3. Sri Shashi Nandan submitted that
the scheme of the provisions indicates that
a finding that the judgment debtor has the
means to pay has to be recorded at the
stage before issuance of warrant of arrest
or notice. The submission does not appear
to be correct. Section 51 Civil Procedure
Code provides that execution by detention
in the civil prison shall not be ordered
except after giving opportunity to the
judgement debtor and for reasons to be
recorded. The section only requires that
opportunity
be
given
and
reasons
recorded before ordering detention. As yet
no detention has been ordered. The
warrant of arrest, which has since been
withdrawn was issued to secure the
presence of the petitioner in court. The
requirement of Section 51 is met even if
reasons are given by the court at a stage
after the examination of the judgement
debtor under Order 21 Rule 41 Civil
Procedure Code has been made. The
provisions under Order 21 Rule 41
provide for two contingencies. While Sub
Rule 1 provides that the judgment debtor
can be called upon to give his statement
before the court as regard to assets owned
by him Sub Rule 2 leaves it open to the
court to require the judgment debtor if the
decree has remained unsatisfied for more
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1 All] Vipul Agarwala V. M/s Atul Kanodia & Company
29
than 30 days to file an affidavit indicating
therein the assets that he possesses. This
sub Rule 2 has been added by the Civil
Procedure Amendment Act No. 104 of
1976. The intention of the Legislature
made clear by this provision is that if the
assets of the judgment debtor are not
clearly known to the decree holder and
the decree is not satisfied examination of
the judgment debtor or his affidavit may
be required so that the assets can be
ascertained. Sri Shashi Nandan relied
upon a decision of this Court in AIR 1964
Allahabad Page 378 Kahhaiya Lal Vs.
Mahabir Prasad Jain in which it has been
held that the burden to prove that the
judgement debtor had assets lies upon the
decree
holder.
The
decision
is
distinguishable. What was held in that
case was in the context of an order of
detention
which
had
to
meet
the
requirement of Clause (b) of the proviso
of Section 5 which postulates a finding
that the judgment debtor has the means to
pay. The scope of order 21 Rule 41 Civil
Procedure
Code
did
not
fall
for
consideration in that case. That apart that
decision was given at a point of time
when the provisions under sub Rule 2 of
Order 21 Rule 41 Civil Procedure Code
had not been inserted in the Civil
Procedure Code. Rule 11-A of Order 21
Civil Procedure Code is a procedural
provision meant only to focus the
attention of the parties to enable them to
place the material upon which the court
can
decide
whether
execution
by
detention be ordered under Section 51
Civil Procedure Code. The stage of Rule
11-A is obviously earlier in point of time
to the stage of Rule 40 and 41 of Order
21. If all the material on which the court
is to pass an order for civil detention is to
be stated in the application and affidavit
contemplated in Rule 11-A the provision
of Rule 41 would be virtually redundant-
a view which but for compelling reasons
can not be taken. Interpreted in this light I
am of the view that at the stage of the
application and affidavit under Rule 11-A
it is enough to state broadly the grounds
on which execution by detention is
sought.
These
grounds
can
be
supplemented and supported by material
which
may
become
available
by
execution of the judgement debtor or from
his affidavit under Rule 41 or from the
evidence led by the parties under Rule 40.
While interpreting these provisions it has
to be borne in mind that after the decree
the
judgement
debtor
may
try
to
camouflage his assets and properties and
it may only be after the curtain is removed
by examining him or looking into the
books of his business that the assets in his
possession become visible. That apart till
date no order of detention has been
passed.

4. Lastly, it was submitted relying
upon a decision in AIR 1981 Delhi Page
114 Radhika Narain Vs. Chandra Devi
that the court can not enter into a roaming
and fishing enquiry for examining the
judgement debtor under Order 21 Rule
41.
This
decision
is
entirely
distinguishable. The question involved in
that case was of territorial jurisdiction of
the court to which the decree was
transferred for execution. It was held that
it was necessary for the decree holder to
aver facts, which confer jurisdiction on
the transferee court to execute the decree
and if such facts were controverted to
embark upon an enquiry on the question
of jurisdiction. In the present case no
question of territorial jurisdiction. In the
present case no question of territorial
jurisdiction is involved. It may also be
taken note of that as yet final order for the
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arrest and detention of the applicant in
civil prison has not been passed. It is only
at that stage after the examination under
Rule 41 or evidence under Rule 40 that
reasons are required to be recorded at the
stage of ordering execution by detention.
The revision has no merit. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.9.2003

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 27709 of 1999

Km. Kusum Rani and others ...Petitioners
Versus
District
Inspector
of
Schools-II,
Allahabad and others
 ...Respondents

Counsel for the Petitioners:
Sri Prakash Padia

Counsel for the Respondents:
S.C.

U.P. Intermediate Education Act 1921
Section 16 E- Termination of service
Assistant Teachers in Primary section
attached to Intermediate- appointed
without following the procedure of laweven the advertisement not disclosed the
vacancy
under
servati
on
quotaopportunity of hearing not requiredjoining
without
valid
appointmentapproval
by
the
authority-heldredundant.

Held: Para 16

The petitioners appointments per se was
illegal, therefore, principle of natural
justice cannot be said to be given and
the petitioners cannot unnecessarily be
afforded opportunity of hearing before
passing the said impugned orders. The
said appointments in question are in
contravention to the norms and are not
made by the approval of D.I.O.S. or the
irregularities for defiance of reservation
policy goes to the very root for instance
no vacancies/posts were available and if
vacancies/posts were existing then the
authorities overlooked to observe norms
of
reservation
policy,
in
these
circumstances, the selections lack legal
foundation and no legal rights accrued to
the petitioners in view of the (State of
Punjab Vs. Jagdip Singh) AIR 1964 SC
521 Para-8.
Case laws discussed:
1998 JT Vol 6 page 464
1991 SC 309
1999 UPLBEC (3) 1691
AIR 1978 SC 851
1979 (2) SCR 953
AIR 1964 SC 521

(Delivered by Hon'ble R.B. Misra, J.)

1. All these writ petitions are taken
up together.

By way of writ petitions no. 27709 of
1999 and 30563 of 1999 order dated
31.12.98 passed by District Inspector of
Schools, Allahabad and subsequent order
dated 15.5.99 have been challenged.
Further prayer has been made seeking
writ
of
mandamus
restraining
the
respondents from interfering in the
working of the petitioners as Assistant
Teachers and for payment of salary month
by month along with arrears from the date
of their initial appointment. Still further
prayer has been made to grant approval
by the District Inspector of Schools in
favour of the petitioners as a primary
teacher in the institution. Km. Preeti
Singh by way of writ petition no. 14570
of 1999 has prayed to quash the selection
which took place on 17th December, 1998
in
pursuance
of
the
advertisement
published in local news papers 'Rashtriya
Sahara' on 16th October, 1998 and in
'Amar Ujala' on 17th of October, 1998 to