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common_man (NA)     28 September 2011

Property attachment under money recover suit.

Hi,

In the money recovery special suit judgment is in favor of plaintiff. For the Money Recovery, EP is filed and properties being attached.

It was a loan given to a partnership company (total 3 partners + 2 branch offices at various locations). The company is closed and all the directors are now working in various MNC companies.

Nobody was paying back the loaned amount so suit was filed.

The order is as follows.

O R D E R
1- The suit is hereby partly decreed
with proportionate costs.

2- The defendants no. 1 to 5 do pay
Rs. 20,00,000/- to the plaintiff
jointly and severally along with
future interest @8% p. a. from
the date of filing the suit, till
it's actual realization.

3- The decree be drawn up accordingly.
Dictated and pronounced in Open Court.

I have few questions.

1. One of the Director's property is already mortgaged in a Nationalized Bank. The case is going on in DRT to recover the money. If this property is attached, then can plaintiff gets his share of the property to recover the money. Isn't recovery happens rationalized way?

2. Another Director living in his father's flat. Can this property is attached provided this director is only sole heir for this property?

3. If the recovery is not made, then can these defendents arrested? What could be options available for plantiff to recover the amount.

Thank you very much for the spending the time to read this.

 



Learning

 2 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     28 September 2011

Dear Friend

There is a provision U/O 21 of Civil Procedure Code rule 37 and 38

37. Discretionary power to permit judgment debtor to show cause against detention in prison

 

(1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison:

 

1[Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.]

 

(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

 

38. Warrant for arrest to direct judgment-debtor to be brought up

Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the costs (if any) to which he is liable, be sooner paid.

 so if the Director ahve not paid money then filed an application under this rule. feel fre to call me on 9953809956

sridhar pasumarthy (ADVOCATE)     08 October 2011

hi,

Amount can be realised from the property attached, if anything remains after satisfaction of the debt which is the subject matter before DRT.

Though he is a sole legal heir, his father's self-acquired property can neither be attached nor brought to sale in execution unless father dies intestate

There are several modes for execution of money decree under civil law, one of which is by way of detention in civil prison as contemplated under Order XXI Rule 37 C.P.C.  But to avail this mode, the plaintiff has to prove that the defendant has means but intentionally avodiing to satisfy the decree amount.


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