1. Muti-Ur-Rahaman v. MD. Mushtaq

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the interim order dated 28h112O24 passed in CRP No 3688 of 2024, in the interest of justice. BETYUEEI{: MD. Mushtaq, S/o.Late MD.Moinuddin, Aged 54 years, Occ Business, R/o. Gandhi Chowk, Adilabad. AND ...Petitioner/Respondent

1. Muti-Ur-Rahaman, S/o.Muteen-Ur-Rahman, Aged 74 years, Occ. Rtd. police Co.nstable, . R/9 !l.fo.3-3;22-9l'1,. Chota Talat, Panjesha Shivaji Chowk, Adilabad, Dist.Adilabad (died) by his legal heirs.

2. Anees Fathima, D/o. Muti-Ur-Rahman, Age 36 years, Occ. House hold, 3. Saifi, S/o.Muti-Ur-Rahman, Age 27 yeas, Occ. Student, 4. Hasif, S/o.Muti-Ur-Rahman, Age 25 years, Occ Student, 5. Sania, D/o. Late Mujeeb-W-Rahman, Age 24 years, Occ House Hold, 6. Faizan, S/o. Late Mujeeb-Ur-Rahman, Age 23 years, Occ Student, [All are R/o.H.N o.3-3-22911., Chota Talab, Panjesha Shivaji Chowk, Aditabad,Dist. Adilabadl. ...Respondents/Petitioners Counsel for the Petitioners: Mr. KONDADI AJAY KUMAR, Advocate Counsel for the Respondent: Mr D SAWANARAYANA, Advocate The Court made the following: ORDER /;: IN THE COURT FOR THE STATE OF TELANGANA AT HYDERABAD THE HONOURABLE SMT. JUSTICE RENUI{A YARA NO 1 1TH Between: Muti-Ur-Rahaman and 5 others ... Petitioners/JDRs Md. Mushtaq ORDER: ...ResPondent/ DHR Heard. Mr. Kondadi Ajay Kumar, learned counsel for the 1. petitioners/Judgment debtors and Mr. D. Satyanaraya1n^a' learned counsel for the respondent/Decree holder' Perused the record. The Civil Revision Petition is filed by the petitioner Nos'2 2. to 6/judgment debtor Nos.2 to 6 against the respondent/ Decree holder aggrieved by the order passed by the learned Senior civil Judge at Adilabad in E.A.No.14 of 2024 in E.P.No.16 0f 2018 in o.S.No.15 0f 2015, dated 24-10.2024 directing the petitioners herein to appear before the court for oqal examination and to file their affidavit in support of their \ 2 contention and granting permission to the decree holder to cross examine the petitioners herein. 3- For the sake of convenience, the parties are referred as they are referred in the E.p.

4. The brief facts of the case are that the Decree holder fited a suit for recovery of money of Rs.3,Oo,ooo/- with interest at l2o/o per annum against the deceased JDR No.1 vide o.s.No.l5 of 2015 and said suit was decreed on o2.ll.2ol7 directing the deceased JDR No.l to pay an amount of Rs.4, L4,IZ4/_. On passing of the decree, the Decree holder filed E.p.No.16 of 2org against the deceased JDR No.l for recovery of the decreetal amount. [n said E.p, an order dated 21.or.2023 was passed for attachment of immovable property bearing H.No.3-3 -22g / r, Shivaji chowk, panjesha, Adilabad. Aggrieved by said order, the petitioner Nos.2 to 6/JDR Nos.2 to 6 preferred c.R.p No.237l of 2023 to set aside the order in E.p.No.16 of 2oLg. This court vide order dated 21.02.2024 has set aside the impugned order dated 2l.or .2023 in E.p.No. 16 of 2o1g and remitted the matter back to the E.p court for ascertaining the share of the deceased JDR No.l and JDR Nos.2 to 6 over the // / // :3 property and to dispose of the property after giving due opportunitY to both the Parties'

5.UponremittanceofthematterbacktotheB.PCourt,the DecfeeholderfiledE.A.No.14of2024inE.P.No.16of2o18 underorderXXIRule4LrlwSectionl5lofCPCtosummon the JDRs 2 to 6 for the purpose of satisfying the decree by reporting about partition of E'P schedule property' if any' and the shares devolved out of the share acquired by the principal JDR No.1 after the death of original 0wner Azeezya Begum, who isthewifeofthed.eceased'JDRNo.l.Aggrievedbysaidorder, the present Civil Revision Petition is filed'

6.Ingroundsofrevision,theJDRs2to6havepleadedthat itistheresponsibilityoftheDecreeholdertoprovidethe informationaboutthepropertyofthe.JDRNo.landthatan enquiry has to be conducted independently instead of directing theJDRNos.2to6toappearbeforetheCourtfororal examination. Further, it is pleaded that a petition under order XXlRule4lofCPCisfiledatabetatedstagewhensucha petitionhastobefiledpriortofilingoftheE.PunderOrderXXI Rule|l(2|ofCPC.Lastly,itispleadedthatunderorderXXl \\ \ :4 Rule 41 of cPC, shares in a joint family property cannot be decided. At best, under said provision, the assets of the JDR No.1 can be determined. In view of the foregoing ground.s, the JDR Nos.2 to 6 pleaded that the impugned order be set aside and to allow the Civil Revision petition.

7. The learned counser for the JDR Nos.2 to 6 relied upon Judgment of the High court of Bombay in the case of united Phosphorus Ltd. v. A.K. Kanoriar, wherein, it is held that an application under order XXI Rule 4r of cpc is not an execution petition, but an application filed for the purpose of aiding execution of a decree and is a step towards execution. Relevant portion of the said judgment is extracted and produced below: \2. In my opinion, application uncler Order XXI, Rule 41 CPC is not an application in an execution. It is an application in aid of execution or 'a step towards the execution.. under clause (1) of Rule 11(2) of order XXI of the code of civil procedure, the "*.".rtio., petition must specify the mode in which assistance or tne court is required for the execution of a decree. clause fi) reads as follows: fi) the mode in which the assistance of the court is required whether- (i) by the delivery of any property specifically decreed. (ii) by the attachment, or by the attachment and sale, or by the sale u,ithout attachment, of any 'z6o2 SCC online Bom 503 f,: property- person; tiiij UV the arrest and retention in prison of any (iv) ty the appointment of a receiver; iu;'otf,".*ise, as the nature of the relief granted may requlre. Examinationofajudgmentdebtorundersub-rule(1) ofRule4-ofOrderXXlord.irectiontothejudgmentdebtor to fite an affid'avit to be issued under sub-rule (2) of Rule 4l or Order XXI is not one of the mode of execution oi a decree provided in clause (i) of Rule 11(2) of Order XXI' Rule 3O. Disclosure of the assets is a preliminary step towards the execution of a decree' Rule Nos'3 to 9 of Order XXloftheCodeofCivilProcedurecontemplatetransferof a decree by the Court which passed the decree to another Court for execution' The decree holder' who is not aware of the assets of the judgment debtor' is often unable to decideinwhichCourtheshouldfiletheexecutionpetition or in which Court he should get the decree transferred unless he knows the particulars of the assets of the Judgment debtor' Rule 41 of Order XXI enables the decree holder to get from the judgment debtor the information of the assets, which is within the special knowledge of the judgment debtor' Therefore' an application under Order XX[, Rule 41 is not an application for execution of the decree but, merely an aid to the decree holder to enable himtoexecutethedecreebyobtaininginformationwhich is within the special knowledge of the judgement debtor' If this be so, the application under Order XXI' Rule 41 would ordinarily precede the filing of an execution petition' though \ pctition itself' I am fortilied in this view by the judgment of \ t.___... '.262: the Calcutta High Court in Shew Kumar Company v. Grindlays Bank Limited reported in AIR 19g6 cal. 32g wherein the Division Bench observed in para-9 of its Judgment: "we accept the contention of the Respondent that an application for examination of a judgment debtor (under Order XXI, Rule 4I) is strictly not an application for execution". In the said case, the Division Bench further herd even after the decree is transmitted for execution to another court, the court passing the decree retains jurisdiction in respect of the decree and can examine the judgment debtor, under Order XXI, Rule 4L. It is not necessary in this case to consider n,hether the court n hich passes the decree retains jurisdiction over- the decree even after its transmission for execution to another court, but I am of the opinion that the court which passed the decree does not cease to have a juriscliction to entertain an application under order xx[, Rure 4L atleast till the decree is transmitted to another court for execution.,,

8. Further, reference is made to judgment in the case of N chandra chems, Mumbai v. verma Mukherji Rrt. Ltd..2, wherein, it is held that an application under order xxl, Rule 4l(2) of cPC has to be filed prior to initiation of proceedings under Rule 1L(2) of order 21. The purpose was to enable the 2 2oot (5) Mh.L.J , , 7 Decree holder to ascertain the properties of the JDR with respect to properties which are not in the knowledge of JDR' Further, reliance is placed on the judgment of the High Court of Kerala in the case of State Bank of India v. M.K. Raveendran3, wherein it is held that the object of Rule 4L of Order XXI CPC is to enable the Decree holder to get necessary information with respect to properties of JDR so that he can realise his debt without difficulty and trouble. [t is an effective provision to obtain discovery in aid of execution of decree which is obtained. Further, an apptication under Rule 4t of Order XXI CPC is not one of modes of execution of decree provided in Clause [i) of Order XXI Rule ll(2) of the CPC. Under Order XXI Rule 4l of CPC, disclosure of assets of JER is contemplated as a prelimil..y step towards execution of the decree' g. In response, the learning counsel for Decree holder submitted that the suit for recovery of money was decreed way back in the year 2Ol7 and in spite of lapse of eight (8) years, not a single rupee is recovered from the deceased JDR No' 1 and his legal representatives. It is submitted that the provision under Order XLI Rule 4l of CPC is to ascertain the assets of the 3 2oo9 SCC online Ker 5o7B tI \ E JDR Nos.2 to 6 for the purpose of realization of decree and in that process, attachment was made of the property bearing H.No.3-3-229/1, Shivaji Chowk, Panjesha, Adilabad. After the attachment, the JDRs 2 to 6 r,r,ho are the legal heirs of the original JDR No.1 have raised the objection contending that the property which is attached did not stand in the name of the original JDR No.1. but stood in the name of his wife. when the suit was pending, the wife of JDR No. I died and therefore he is entitled to 5o% of the property and the JDRs 2 to 6 are entitled to the remaining extent of the property. It is submitted that the JDRs 2 to 6 have completely denied liability to pay the compensation on the ground that they have not inherited any propert5r from the deceased JDR No.l and therefore they are not liable to pay any amount to the Decree holder. It is further submitted th.at upon hearing the arguments of both the parties, this Court in cRP No.237l of 2023 has remanded the matter back to the E.P court for ascertaining the share of deceased JDR No.l and the shares of JDRs 2 to 6 for the purpose of realizing the decree. It is lastly submitted that the JDRs 2 to 6 who have inherited the property of their father are employing every means available to delay the realization of the decree. ,-,/ i9

10. When the fact situation of the present E'A under revision isconsidered',itisSeenthatthed'eceasedJDRNo.listhe person who has taken the loan of Rs'3'00'OOOI- from the Decree holder way back in the year 2Ol2 and thereafter' failed torepaytheamount.Thesuitwasfiledandthesalnewas decreed in the year 2017. After the suit was decreed, when there was failure on the part of the deceased JDR No'l' to satisfythedecree,E.Pwasfitedandattachmentofhouse bearingNo-3-3-229ll'ShivajiChowk'Panjesha'Adilabad'has been effected. when said property was attached, the original JDR No.1 also passed away' When said E'P carne for adjudication, the stand taken by the JDRs 2 to 6 who are the legalheirsofthedeceasedJDRNo.listhattheproperty attached in the B.P belonged to their mother but not JDR No'1' ItisthecaseoftheJDRs2to6thatno-propertywasinherited by them from the deceased JDR No.l and therefore, tl'rey are not liable to pay any amount to the decree holder' ll.WhileSo,itisapointtobenotedthattheproperty attached belonged to the wife of the original JDR No' 1' It is also anadmittedfactthatshedied.Onceshedied,aSper Mohammedanlaw,thedeceased'JDRNo.linheritedSo%ofthe \ \ ::10:: share and the remaining extent is inherited by the children i.e. the JDR Nos.2 to 6. Further, once the JDR No.1 died, the share inherited by him from his wife's property devolved on his children i.e. JDR Nos.2 to 6. In this fact situation, by operation of Mohammedan law, the JDRs 2 to 6 have inherited or succeeded to the share of the original JDR No.1 in the property of his wife, Azeezya Begum to an extent of 5O%. Therefore, there is absolutely no ground for the JDRs 2 to 6 to claim that they did not inherit any property from the deceased JDR No.1.

72. In the present E.A under revision, the Decree holder is not seeking discovery of any new property for the purpose of realizing the decreetal amount. The Decree holder has already identified the property which stood in the name of wife of the deceased JDR No.l for the purpose of realizing the decreetal amount. Thbrefore, it can be safely concluded that no new discovery is expected in the E.A which is filed for appearance of the JDRs 2 to 6. The point to be ascertained is the shares of each of the JDR No.2 to 6 which they are entitled to in the property which was owned by their mother. By operation of law, after death of the r,r,ife of JDR No. I and the .IDR No.1, the entire property devolves on the JDR Nos.2 to 6. Ho,w,ever, said / I , ::11:: propertywillnotdevolveinequalsharesonthedaughtersand the sons. As per Mohammedan law, the sons and daughters get differentsharesintheproperty.Therefore,toascertainthe liabilityofeachoftheJDRNos.2to6totr,eextentoftheir share, they can be summoned to the court, and they may be permittedtofiletheaffidavittosupporttheircontention.

13.TheE.PCourthasmerelyfollowedthedirectiongivenby thisCourtinC.R.PNo.23TIof2023,givinganopportunityto theE.PCourttoconductenquiryastothesharesofeachofthe JDRNos.2to6andgivingopportunitytoboththeparties. SincetheE.PCourtismerelyexecutingtheorderpassedby thisCourtinC.R.PNo.23Tlof2023,thisCourtseesnoreason to interfere with the order passed by the learned E.P Court, i.e. theCivilRevisionPetitionlacksmeritsandistiabletobe dismissed.

14. Intheresult,theCivilRevisionPetitionisdismissed. Pending miscellaneous petitions' if aray' shall stand closed. No costs. SD/- P.CH.NAGABHUSHAMBA DEPUTY REGISTRAR {0, SECTION OFFICER //TRUE COPY//

1. 2. ONC CC tO MT. KONDADIAJAY KUMAR 3. One CC to Mr. D SATYANARAYANA Advocate [O ,at cI TwocD coPies M-^ HIGH COURT D ATED: 1111212025 cr{tr{.l o t) 2 0 tlt 295 ')' ,,. l CRP.No.3688 of 2O24 { D Accordingly, this Civil Revision Petition is Dismissed 6 1Q