Part 2| Execution | Section 36-74 ORDER 21 Execution of Decrees & Orders ‘CPC deals with the substantive law in respect of execution of decree or order] And its in Order 21 of CPC. When a person obtains a decree from a court of law against another person, his next steps to get the decree satisfied. The proceeding by which he moves the court for satisfaction of decree is called execution proceedings. Execution s the medium by which a decree holder constrains the judgment-debtor to do the ‘command ofthe decree or order asthe case may be. ‘Execution: Itis the process of the court by which decree or orders are enforce “The term “execution” is not defined in the CPC. The term “execution” means implementing or enforcing oF iving effect to an order ora judgment passed by the court of justice. In simple words “execution” means the process of enforcing or giving effect to the decree or judgment of the court, by compelling the judgment: {btor to carry out the mandate of the décree or order and enablethe decree-holder to recover the thing {ranted to him by judgment. Section 36 provides thatthe provisions relating to execution of decree can also be applicable in execution of ‘orders. nd this Section also states thatthe provisions relating to (execution of adecree or order] include [payment undera decree or order]aswell, © Order 21 has been classified as follows - 1, Payment under Decree (Rt, 2) 2. Courts Executing decrees (R3-R3) ‘3. Applications for execution (R10-R23) &'the process tobe applied( 24,25). 4. Stay of executions. (R26-R29) 5. Mode of executions. (R30-R36) {(RET-RaO) Arrest & Detention in civil prison (RATRST) Attachment ofProperty | {R58} Adjudication of the calmsend objections. | (R59) Stay of Sale 6. Sale Generally. (R64-R73) | (R74-Rai) Sale of movable property aes ‘oflmmovable property 17. Resistance and delivery of possession. (R97-R106) 124 ‘Scanned with CamScannerLI INS Fé JTION : Rute 10-23 of order 21 deats with applications for execution. ‘The following person is authorized to apoly for execution 1) Decree-holder (as defined u/s 23) of ¢PC.) 2) Legal representative of decree holder. (Legal representative is defined u/s2(11) of CPC) 3) Inthe case ofa jointly passed decree any of them. (see Order 21, Rule 15) 4) Transferee of a Decree, (See Section 49 of CPC & Order 21, Rule 16) '5) The person making the claim under the decree-holder, ‘According to Order XX! Rute 10, an application has to be filed Inthe Court by the decree-holder if e desires to ‘execute it. fa party isnot approaching the court, then the court has no obligation to implement it suo motu, ‘The decree-holder can apply for execition of a decree, before any ofthe following - 4, The court passing the decree, or 2. The authority appointedin this behalf (any), oF 3. Ifthe decree is sent to any other court, the application can be made before that court or its proper officer. he sr execut 1 be made against the following 1) Judgement debtor (as defined u/s 2(10) of PC. 2) Legal representative of Judgement debtor. (Legal representatives defined u/s 2{11}of CPC) Notice for Execution - Generally there is no provision that any notice should be given to the party against ‘whom the application for execution is made, But, the notice has to be given: + Where the application for execution has been made- 1. after2 years from the date of decree [Order 21, Rule 221]; oF 2.againstthe legal representative ofthe deceased (Judgement debtor); or Buin rela 1 toa decree passed by the court ofthe United Kingdom or any other reciprocating territory; or 4. Where the decree pertains to the payment of money and the execution pertains to personal proceedings against the Judgement debtor; or ‘5. Where the interest of decree holder has been transferred. Order 21, Rule 11 : Contents of application ‘Bral application (1) Where a decrees for the payment of money the Court may, on the oral application of the decree holder at the time of the passing ofthe decree, orderimmediate execution thereof by the arrest ofthe judgment-debtor, prior to the preparation of a warrantif he is within the precincts of the Court. [Written application (2) Save as otherwise provided by sub-rule (1) every application forthe execution of a 125 Scanned with CamScannerdecree shall be in writin, signed and verified by the applicant or by some other person proved tothe satisfaction of the Court tobe acquainted withthe facts of the case, and shall contain in a tabular form the {ollowing particulars, namely: (a) the number ofthe sult; (b) the names ofthe parties; (¢) the date of the decree; (4) whether any appeal hasbeen preferred from the decree; (e) where any, and (any) what, payment or other adjustment ofthe matter in controversy has been made between the parties subsequently to the decree; ( whether any, and (if any) what, previous applications have been made forthe execution ofthe decree, the dates of such applications and their results; {g} the amount wth interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date ofthe decree sought to be executed; {h) the amount ofthe cost (ifany) awarded; {i) the name of the person against whom execution of the decree s sought; and (0) the mode in which the assistance ofthe Courtis required, whether= 1. bythe, livery of any property specifically decrees i, by the attachment, oby the attachment and sale orby the sale without attachment, or any roperty;] i, by the arrest and detention in prison of any person; IW, by the appointment ofa receiver; 1. otherwise as the mature ofthe relief granted may require (2) The Court to which an application is made under sub-rule (2) may require the applicant to produce @ certified copy ofthe decree. by which may be execu 1) whotdoyourmeon bon executing Cour (B) saction38 Courts which may be execute decrees:A decree may be executed either by isthe court ofthe irstinstance [the court which passed, whichis defined In section 37);0r ithe Court whichithas been sentfor execution. (rw. 3] Darasana Bal vCSareja,AIR2014%The Expression “Court of First Instance" means the court which passed the decree and not the court in which the suit was originally filed, 126 ‘Scanned with CamScanner—_—_————— | @.2) Define "Court which possed decree and explain the provision for transfer of decree for execution (I ‘Section 37 "Court which pasted a decree”: The expression "Court which passed a decree" under this section Includes the following Courts Where the decree tobe executed isa 1) decree of a Court of first instance, the proper Court to execute itis the Court of firstinstance. 2), decree passed by » Court of frst appeal, the proper Court to execute tis also the Court of fist instance. 3) decree passed by the High Court in second appeal, then also the proper Court to execute tis the Court offirst Instance. 4) Where the Court of first instance has ceased to exist, the only Court that can execute the decree is the, ‘Court which at the time of making the application for execution would have jurisdiction to try the suit in “which the decree was passed. The application for execution must be made tothat Court. planation to this section provides that, the court of frst Instance shall have Jurisdiction to execute 8 ‘decree even in the case of any area being transferred from the jurisdiction ofthe court of first instance to the jurisdiction of any other court. In such cases, the court to the jurisdiction of which such area has been transferred will also have jurisdiction. to execute the decree, provided that the said court had jurisdiction to try the said sult when the application for execution was made, “Thus, now both the Courts would be competent to entertain an application for execution of the decree. Limitation: The limitation period forthe execution of a decree!s 12 years from the date ofthe decree. The period of imitation for the execution ofa decree for mandatory injunction is 3 years from the date of the decree. Section 39, Trans e Sub:3eGtion (3) sets out the following conditions in which the Court which passed a decree may, onthe pplication ofthe decree-holder, send it for execution to another Court of competent jurisdiction «ifthe udgment-debtor carries on business, or resides or personally works for gan, within the jurisdiction ofsuch Court; or b ifthe property of judgment-debtor does not come under the jurisdiction of the Court of the first instance but it comes under the local limits of the jurisdiction of such Court; or 127 Scanned with CamScanner See eeifthe decree directs delivery or sale of immovable property situated outside the jurisdiction of the Court which passed the same; or 4.if the Court which had passed the decree considers that the decree should be executed by another court, but it hall record the reasons in writing for doing the same. ‘SB-ReCALON La) clarifies thatthe Court can suo motu transfer the decree for execution to another Court.. ‘SUBREALGALG clarifies that the transferee Court must have pecunlary competence to deal with the sultin which the decree was passed. SUBREETOR LA) debars a Court which passed a decree to execute the decree against any person residing or carrying on business or property situated beyond territorial limits of the same. ‘Zaz Fashion v Ut Worldwide India) Pvt Ltd, AIR 2014: When a decree Is transferred u/s 39, its the duty of the transferee Court to execute It by all methods provided by the CPC. (See 0 XX rules 5, 6,7, £9). ‘sper Order21 Rule 6 of the CPC, ifa decree under the provisions of Section 39 has been sent for execution to another district, it can be executed by either the district court to which it was transferred or by 3 subordinate court which has the necessary jurediction, to which the district court may refer it. ‘Section 40 ransfer of decree to Court in another State: Where a decrees sent for execution n another State, ie shall be gent to such Court and executed in such manner as may be prescribed by rules in forcein that State. Note: This section applies only when the "transferor" and the “transferee” Courts are both regulated by the provisions of the Code of cv Procedure. Note: The word "manner" used in this section refers tothe procedure under which the execution is tobe made, Mode of Transfer and Pracedure.— Reference may be made torules and 6 0 XX of the Code of Civil certificate under this section has tobe Issued ‘only when the Court to which the decree Is transferred for execution has executed the same and where it to execute it, it must certify the crcumstances for such fallure. Note: The provisions regarding certification by the transferee Court under this section are mandatory and jalnature and not administrative. Section 42 Powers of Court in executing transferred decree: Sub-section [1] The Court executing a decree sent tot shall have the same powers in executing such decree as fit had boen passed by itself. Allpersons disobeying or obstructing the execution ofthe decree shall be punishable by such Court inthe same manner asifithad passed the decree And ts order in executing such decree shall be subject tothe same ules in respect of appeat asif the decree had been passed by itself. ‘Subsection 2] provides that the Court to which a decree is ent for execution enjoys the following powers: (1) power to send the decree for execution to another Court u/s 395, (2) power to execute the decree against the legal representative of the deceased judgment-debtor u/s SSeanned with CamScanner{3} power to order attachment of adecree, SGBSEAIOAT) A court passing an order in exercise of the powers specified in sub-section (2) shall send copy thereof tothe Court which passed the decree. ‘SUB¥EATOR@) lays down that such a Court does not have the following powers, namely.— (1) power to order execution atthe instance ofthe transferee of the decree; and {2} inthe case ofa decree passed againsta firm, power to grant leave to execute such decree against any person, except {0} person who has appeared as a partner or who had admitted that he isa partner, oF ividually served asa partner with summons but has failed to appear. (b)a person whe has been {See clause (b), or clause (c), of sub-rule (1) of rule 50 of Order XXL) In what manner may a decree of foreign cot in India Ans. A combined: courts have power to execute the decrees passed by lng of Sections 43 to 44-8 shows that the Indi {2} indian courts to which the provisions ofthe Code do not apply; (S 430f CPC) (2) the courts situate outside India which are established by the authority of the Central Govt; (S43 of CPC) (2) revenue courts in india to which the provisions ofthe Code da not apply; (S 44 of CPC) & (4) superior courts of any reciprocating territory. (S48-A of CPC). ‘Nate: The folowing countries are some of the natified reciprocating territories recognized by India ~ United Kingdom, New Zealand, Bangladesh, U.A.E, Hong Kong, Singapore, Malaysia, Fiji, Trinidad & Tobago, Papua and New Guinea, Section 45 Execution of indian decrees in aforelen territory: This Section refers to the execution of decrees ‘of indian Courts ina foreign territory. Itstates that 2 Court has the power tosend a decree for execution toa Court outside India which has been ‘established by the Central Government's authority. It should be ensured thatthe State has, by notification in the Official Gazette, declared the sald section can apply to such Court. Alain reading of the aforesaid provision yields the following features: |. The decree which has to be executed should be ofan Indian Court git shouldbe for execution ina foreign territory. Ii, The Central Govt should have established the transferee court in such foreign teritory iii The State Govt should have declared by notification inthe Official Gazette that this section wll apply to the said foreign Court. 129 ‘Scanned with CamSeannerthe provision, therefore, prescrives the prerequisite conditions fr the execution of amin ian decree outside the country. Questions to be determined by Court executing decree | Section 47 tions thot may be determined bythe court executed a decree? Can the executing Court 90 @.3) What are the ‘behind the decree? Section 41 estions to be determined by the court executing the decree ae executing courthave the powerto consider each and every question whichis determined while passing the decree by the other or same court onditions:~ L.atiquestions must arise betweenthe partis tothe sult or thelr representative ii. ttrnust arise in the suit in which the decree was passed. ti. ttmist relate tothe execution, discharge or satisfaction of the decree, Iv. te must be determined by the execution court. ote: ttmustbe noted that the questions related tothe validity ofa decree mill not be considered 3 (questions relating tothe exeeution, discharge or satisfaction ofthe decree, Con the executing Court go behind the decree? Deepa Bhargava v Mahesh Bhargava 2009); An executing Curt cannot go behind the decree. Ithasno jurisdiction to modify a decree. tmust execute a decree asitis. nd tteannot entertain any objection that itis incorrect inlaw or on facts, Untlit is setaside by an isin appeal or revision, a decree even fitbe erroneous is stil binding between the put there are3 cases where inthe executing Court can gebehind the decree, They where the decrees a nullity. Where the decree is ambiguous. Ti. where the decree has been made by a court without) Duties of Executing Court L.wot tego beyond the decree, ti notte question on the correctness of the decree, But the decree prima facie appears to De vague of ambiguous the concerned court can question the correctness of decree, tis tfexecating court found that court which passes the decree don't have jurisdiction forthe same tcan refuse to executeit. 130 Scanned with CamScannerNote: The nature of section 47 Is mandatory. This section bars separate suit. n other wor supplementary to Section 11 of CPC, Section 47s ‘Venkatasheshayya v Virayya, AIR 1958: Therule of res judicata deals with finality ofa decision of a Court on ‘matter actually or constructively in issue before it & bars a fresh trial of any kind on such questions ina subsequent proceedings between the parties, while section 47 deals withthe enforcement of such decisions ‘enacts that the questions specified inthis section shall be tried inthe execution and not by a separate suit. Transferees & Legal Representatives | Section 49-50 ‘Section 49 : Transferee : Every transferee ofa decree shall hold the same subject to the equities (ifany) which ‘the judgment-debtor might have enforced against the original decree-holder, ‘The judgment-debtoris entitled to claim under this section only those equities which he had against the ‘original decree-holder, For example-'A' holds a decree of Rs 5000 against’, "8 holds a decree of Rs 3000 against ‘A’ ‘A'transfers its decree to'C'. ‘C* cannot execute the decree against 8! for more than Rs. 2000, (5.49 of CPC can be compared with S. 132 ofthe Transfer of Property Act, 18 ) 0.4) Write short note on legt representative (EID 5) Wht the deree holder wiltdo inthe folowing circumstances: SUED ‘o) Where the judgement debtor dies Before the dcre Is fly satisfedsee S50) 'b) Where the lego! representatives of judgement debtor, who hos been brought on record, dies before the decree ‘is fully satisfied ‘Ans. §(b) in such coses the decree holder may execute the decree u/s $0 ogainst the legal representative ofthe deceased tothe extent ofthe Assets ofthe original udgement-debtor that may have come into his honds. ‘) Where the debtor dies before the decree (see S. 52) ‘d) Where a decree agoinst wrong person as egal representative | ‘Ans, 5(€) A decree obtained by Creditor ofa deceased against e wrong person os his legal representative cannot | bbe executed against against the estate of deceased in hands ofthe rightulheir-in-possession. The creditor must ‘obtain afresh decree against the rightful her. ‘Section 50: Legal representative {a} Where ajudgment-debtor dies before the decree has been fully satisfied, the holder ofthe decree may apply to the Court which passed itto execute the same against the legal representative ofthe deceased. (2) Where the decree is executed against such legal representative, he shall beable only tothe extent ofthe property of the deceased which has come to his hands and has not been duly disposed of; and, for the ‘purpose of ascertaining such Uabllty, the Court executing the decree may, ofits own motion or on the application of the decree-holder, compel such legal representative to produce such accounts ast thinks fit. Note: The term "legal representative” has already been explained under section 2(11) of the Code. Scanned with CamScanner calli ce iteNote : Section 50 & sections 52 and 53 may be usefully read together. Section 52 deats Enforcement of decree against legal representative, Section 50 provides for the situation when the debtor dies before the execution of a decree, Whereas section '52 provides forthe situation when the decree is passed directly against the legal representath For application of Section $2 (1), |. the decree should have passed against the party as the legal representative of the deceased person, and. it should be for the payment of money out ofthe property ofthe deceased, which isin the hands of the legalrepresentative, ‘Then such decree may be executed by the attachment and sale of such erty. Section 52 2) empowers a creditor to execute his decree against the legal representative personally ithe fails ‘to accounts for the properties recelved by him from deceased person. Exception to section 52: Court can implement the decree against the personal property ofthe egal representative provided ifhe is avoiding, neglecting or evading tomake the payment from the property of, deceased. Where he has mis-utilzed the property of the deceased and where the legal representative has, alienated the property of the deceased person ‘SectionS3 extends the scope of sections 50 and 52 to ancestral property in the hands ofa descendant whichis liable under the Hindu Law for payment of debts ofthe ancestor. Procedure in execution | Section 51-54 @.7Whotare the mosesofexecution ofa decree? IB) ‘Ans: Rule 30-36 of Order 21 & Sec51 of CPC related with different Modes of execution. After the decree holder files an application for execution of decree, the executing court can implement execution. Section 51 of €.P,C: decree can be enforced by By delivery of any property specifically decreed. b. Byattachment and sale orby sale without attachment of the property. By arrest and detention. 4d. By appointing a receiver.. ‘e. Any such manner which the nature of relief requires. the court may on the application of decree holder subject to such conditions and limitation as may be prescribed, order execution ofthe decree, ‘Application for execution ujs 51 may be either oral (0.21 R. 10) or written (0.21, R, 11). The court may 132 Scanned with CamScannerexecute decree as} prayed by the decree-holder or as the court may think fit Decree holders Dominus Litus. itis for the Decree Holder to choose mode of execution among those available to him. Neither the Debtor nor the Court can insist upon the Decree Holder to choose a particular mode of execution. ‘5. 51a) By delivery of any property specifically decreed : Property may be of the following 2 kinds - Movable property: ‘Ans, According to Order 21 rule 31(1) of C.P.C, when the decree is for any specific movable property, the ‘execution can take place in any ofthe following made: 8) How is decree related to Spectic movoble property executed? 1. By seizure and delivery af the property. 2. By detention ofthe judgement debtor, 3. By attachment of his property, “4, By attachment and detention both, scree for money cannot be "Wate: Tie words Speciic movable denotinclude maney and there executed under rule 23, [immovable property: @.4) What powers does the court have regarding the execution of immovable Property? ‘Ans: According to 0.21 rule 35 & 36: Where the decree i for immovable property in possession of judgement debtor or in possession of the person bound by the decree it can be executed by removing the judgement debtor or any person bound by such decree &:by delivering the Possession thereof tothe decree holder. Possession deliverin this manneris known as actual passesslan. But f such property i in the possession of tenantor other person entitled to occupy the same and not bound by the decree, the delivery of the property should be made by affixing a copy ofthe warrant at some conspicuous place on the property and proclaiming the occupant by beat of drum or other customary mode at some convenient place for the substance of the ecree regarding the property. Thisis known as symbolic or formal possession. 5.51(b) By attachment and sale or by sale without attachment ofthe property the court is empowered to attach the property itis situated within the local Umits ofthe Jurisdiction of the cour. It is immaterial that the place of business of judgement debtors outside the jurisdiction ofthe court. attachment & salen clause'b! ofS. 51 are tobe read distinctively. Therefore, the attachment of property isnota condition precedent. Hence, Sale of property without an attachment is not void. i's merely ‘anirregularity. Rule 54 of order 21 provides for the attachment of immovable property & the procedure for the proclamation of such attachment. ‘.51{c] By arrest and detention : The law relating te arrest & detention in the CPC has been dealt with u/s51, 155-59 & Rules 37-40 of Order 21. ‘According to clause ‘cof S.51 arrest & detention is also a mode of executing the decree of a civlcourt by putting the Judgement debtor in civil prison, 133 Scanned with CamScanner‘But the proviso to Section 51 is states that where the decree for payment of money, execution by detention in civil prison shouldn't be ordered unless after giving the judgement-debtor in an opportunity of sho ‘cause, why he shouldn't be so detained, the court for reasons to be recorded in writingis satisfied that |. the judgement-debtor with the object of obstructing or delaying the execution of decree a) Istikely to abscond or leave the local limits ofthe jurisdiction ofthe court; or 1) has, after the institution of sult in which the decree was passed dishonesty transferred, concealed or removed any part of his property, or committed any other act of bad falth In relation tos property; or fi, the judgement debtor has, or has had since the date of decree, the means to pay tle amount ofthe money ‘of decree or some substantial part thereof &refuses / neglects /has refused /eglected to pay the same; oF lil the decree is forthe sum which the judgement debtor was bound in a fiduciary capacity to account. ‘These provisions are mandatory in nature and must be strictly complied with. ‘S.51{d) By appointing a receiver: Appointment of recelveris also a mode of executing the decree & such ‘mode of execution of decree fs known as equitable execution & entirely within the dlscretion ofthe court. ‘Thereforeit cannot be claimed as of right. So, Itis an exception tothe general rule which states that the court may execute decree as per the choice prayed by the decree holder. ‘Such mode of execution is considered to be an exceptional remedy & 2 very strong case must be made out in support oft. & the court also must be satisfied that the appointment of recelverisUkely to benefit both the decree-holder & judgement-debtor rather than a sale of attached property ‘S.51(e) By Any such manner which the nature of relief requires According to clause! of 5.51 the last mode of execution is based on equity & Is in the discretion of the court. ‘The execution of a decree can also be done by partition under section 54.of CPC ‘Section 54 of CPC: Partition of estate or separation of share: Section 54 deals with a case where though the ‘ivilcourthas the power to pass a decree yet itis not competent to execute the same. Under this section, the execution of decree shall be made by collector or any gazetted subordinate ofthe Collector deputed by him in thls behalf, In accordance with the law (if any) forthe time being in force relating to the partition, or the separate possession of shares, of such estates. ‘This section applies ony toa case where the decree contemplates the partition ofthe whole ofthe estate paying revenue to Government. t does not apply where the decree fr separate possession of a share of 134 ‘Scanned with CamScanner0.2) Hows decree relotedto payment eecuted? ID ‘Ans: By going through Order 21 rule 30 of €.P.C, every decree for the payment of money, including a decree for the payment of money asthe alternative to some other roief, may be executed by detention in the Civil Prison of the judgment debtor or, by the attachment and sole of his property, or by both. 0.10) How is decree or specific performance fr restitution of conjagarightsor orn injunction executed? ‘Ans: According to Order (21) rule (32) of €.P.C, Where the party against whom a decree for the specific performance ofa contract, or for restitution of conjugal rights or for an injunction, stay has been passed, hos hod en opportunity of obeying the decree and fhe hos willfully failed to obey it, the decree may be enforced, ‘+ inthe case ofa decree for restitution of conjugal rights: 1. By the ottachment of is property, ‘+ Inthe case ofa decree for specific performance ofa contract or for an injunction. |. By his detention in ivi Prison; or Hi By the attochment of his property; or il. By attachment & detention both. Scanned with CamScannerArrest & Detention | Section 55-59 | Rules 37-40 of Order 21 2.21) When con ojudgement debtor be sent to Civilprizon fornot paying the deretotomount?(B) ‘Arrest usually take place when a person Is suspected of having committed a crlminatoffence. However, according to clause 'c! of $5 arrest & detention Is also a mode of executing the decree of acivilcourt by putting the judgement debtor in civil prison, But it must be subject to the proviso given u/s 51 of CPC. “The law relating to arrest & detention in the CPC has been dealt with u/s 51, 55-59 & Rules 37-40 of Order 21. ‘The nature ofthese provisions isnot punitive but is remedial. The whole purpose to detain a person incivil prison isto compel a person to obey the mandate ofthe court when he denles to comply without any ‘sufficient cause, Detention in prison dees not wipe out a person’ liability to comply. ‘The dectee for arrest and detention may be passedin the following cases given under Order 21: |. Under Rule 30, a decree for the payment of money can be executed by the arrest and detention of the judgement debtor. (No order for detention ofthe judgement-debtor can be made, when the amount docs not exceed 2,000 Rs. [Se€S:58(0:A))) i Under Rule 32, where the decree is: detention of the judgement debtor. specific moveable party, It can be executed by the arrest and i, Under Rule 32, where the decree for specific performance of the contractor an injunction, the court can execute the decree by arrest and detention of the judgement debtor. ‘Who cannot be arrested? : There are certain classes of persons that are exempted from arrest and detention ‘under the various provisions of CPC. Such persons includ I. classes of persons, whose arrest according to the State Government, might be attended with danger or inconvenience to the public u/s 55(2), i, Women, as per Section 56, Where the decretal amount is less than two thousand rupees, u/s 58(3A). iv, Judicial officers, as per Section 13512), ‘vi Where a matteris pending, their pleaders, mukhtars, revenue-agents, & witnesses acting in obedience toa ‘summons, u/5135(2),& vil, Members of legislatures, as per Section 135A. ‘Procedure to be followed: The procedure tobe followed for arrest and detentions provided u/s55. Section 55 of CPC: Section 55(1) says that ajudgement debtor can be arrested at any hour & any day in the after such arrest, the he must be presented before the court. execution of a decree, a However, there are certain restrictions regarding entry and time. They are as follows: i. That no dwelling house shall be entered after sunset and before sunrise. 136 Scanned with CamScannerji, That no outer door shal be broken inorder to enter the house unless such a house is the occupancy of the judgement debtor, in case he refuses to prevent access thereto, ii, Where the room sin occupancy of a woman who Is not the judgement debtor a ‘Public due tothe customs, the officer shal give reasonable time and facility to her to withdraw therefrom. fv, Where there isa decree for the payment of money, and the judgement debtor pays the full decretal amount and the costs ofthe arrest tothe arresting officer, he shall not be arrested, Notice : Under Order 21 Rule37, a person who isto be arrested shall be given a show-cause notice to appear before the court & give reasons as to why he should not be committed tothe civil prison In execution of the decree. However, such notices not necessary f the courts satisfied, by affidavit or otherwise, that the effect of ‘delaying the execution can lead to absconding ofthe jurisdiction by the judgement debtor. the judgement debtor does not appear before the court after serving of the notice, ifthe decree-holder so requires the court shallissue a warrant toarrest such person. ‘The procedure of giving show cause notice Is the acknowledgement of the rule of natural justice that any person shall not be condemned unheard (Audl alteram partem). jnder Order 21 Rule 40, itis stated that ifthe person appears before the court after the issuance of the notice as given under Rule 37, the court shall hear the decree holder for the execution of the decree and then give the chance to the judgement holder for showing as to why he should not be arrested. ‘Where ajudgement debtor appears before the court and shows the reasonable cause for his inability to pay ‘the decretal amount and the court is satisfied that he is unable to pay, the court may reject the application of the arrest, However, ifthe judgement debtor could not satisfy the court against the order passed against him for arrest and detention, the court may commit him tothe civil prison, subject tothe provisions of the code, Mayadhar Bhoiv. Moti Dibya, AIR 1984: Where a money decree has not been paid by the judgement debtor in thirty days since that order was made, the court on the application by the decree-holder require the judgement debtor to give an affidavit stating the particulars of his assets, and f the person disobeys such ‘order, he can be detained for three months. ‘Section 55(3) states that where a judgement debtors arrested in execution of a decree forthe payment of ‘money and is presented before the court, the court shall inform him to declare himself as insolvent and he canbe discharged ifhe has not done any actin bad faith regarding the subject of the applicat ‘complies withthe law of insolvency which sin force at that time, Section 56 of CPC says that no womenin shall be arrested or detained, in execution of a decree for the payment of money. ‘Section 57 of CPC provides provision to give monthly allowances for subsistence of judgment debtor for detention by decree holder. (rw 0.21, R.39 of PC) (No udgment-debtor will be arrested in execution of 2 decree unless and until the decree-holder paysinto the Court the subsistence allowance ofthe judgment debtor as fixed by the Court. It can be fixed under section 57 according to the rank, race and nationality of the arrested person.] 137 Scanned with CamSeannerSection 58 of CPC: Detention & Release Sub%SeCtion/1 fSI5H Period of detention :Itwillbe as provided low [Deeretatamount Perlod of detention ifthe amount does nat exceed,000Rs, | no order for detention of the judgement-debtor can be made (Sees. 58(1-4) ifthe amountis2,0001 5,000) Rs | cannot be detained for more than G weeks! I the amount exceeds 5,000 s.1 ‘cannot be detained for more than 3 monthst Release offiudgment-debtor : Under Section 58, every person who has been detained in clvilprison shallbe released before the sald period of detention on the following grounds: |. Where the decree against him has been fully satisfied, Where the amount mentioned in the warrant for his detention has been pald tothe police officer, | Where the person on whose application the person was detained requests $0, or IV. Where the person on whose application such detention was made omits to pay subsistence allowance. But unde jove-mentioned clause i &lil debtor shall not be released without the order ofthe court, (0.1) judgement debtor's detained n cv Prison in exection of decree whether ater release hs iit to pay the debt is discharged? (iS) ‘ns BOBS judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be lable tobe re-arrested under the decree in execution of which he was detained inthe civil prison. ‘Section 59 of PC: Release on ground of lines The provisions of this section are based on humanitarian considerations & shall be applied liberally since itis a beneficial provision.) (2) At any time after a warrant forthe arrest of a judgment-debtor has been Issued the Court may cancelit on the ground of his seriousiliness. (2) Where ajudgment-debtor has been arrested, the Court may release him if, ints opinion, hes n state of health tobe detained in the civil prison. ina fit (2) where ajudement-debtor has been committed tothe civil prison, he may be released therefrom 2. By the State Government, if there exists some infectious or contagious disease, b.By the court which granted the execution or any Court to which that Court is subor of seriousillness ate, on the grounds (4) Ajudgment-debtor released under this section may be rearrested, but the period of his detention inthe ivilprison shall notin the aggregate exceed that prescribed by Section 58. Note: Any person that has been released in accardance with Order XXI Rule AO can be re-arrested. 138 Scanned with CamScannerAttachment | Section 60-64 | Rules 41-57 of Order 21 2.1) write ashore note on attachment? (EIB oizuss the provision in respect attachment of property in execution of decree? Under what circumstances can a court attach the property or port thereof of the defendant under the relevont provision of CPC? (AS [Attachmentis one of the modes of execution of decree under Clause bof 5.51. An executing courtis, ‘competent to attach the property if itis situated within the jurisdiction of the court. Itis immaterial that the place of business of udgement-debtor Is outside the jurisdiction of the court. Section 60-64 & Rules 41-57 of Order 21 of CPC 1908, deals with the matter of attachment of property. Inthe process of attachment, the court, at the request of the decree-holder designates specific property ‘owned by the judgment-debtor to be transferred tothe decree-holder or sold forthe benefit of the decree holder. @.2) What properties ofjudgement debtor sable or not Hable to attachment & sale in execution ofa decree? ‘Section 60 of CPC: This Section describes the property which is liable or not liable to attachment & sale in ‘execution of decree, ‘SUbeeetion 116fS.60 describes the property whichis liable or not liable to attachment &sale in execution of decree. Property which can beattached : There are 9 types of properties, which are liable to attachment and salen execution of a decree Uke: tang; 2, Wouses or other buildings; | 3. goods; “Z-money and bank notes; |S cheques, bills of exchange, hundis and promissory 6. Govt securities, bonds & other securities for notes; ‘mone 7. debts; ‘shares in corporation and; 9. allother saleable property, moveable or immoveable belonging tothe judgmentdebtor or over which he has a disposing power which he can exercise forhis own benefit. “Therefore, itis important thatthe property not only belongs to the judgement-debtor but also, he has disposing power onit. But the following particulars shall not be liable to such attachment or sale Tal the necessary wearing apparel, cooking (8) tools of artisans, and, where the judgment-debtoris vessels, beds and bedding of the judgment- an agricutturist, his implements of husbandry and such debtor, his wife and children, and such personal _| cattle and seed-grain as may, in the opinion ofthe Court, | ornaments as, in accordance with religious be necessary to enable him to earn his livelihood as such, ‘by any woman; | and such agricultural produce which are partially ‘exempted from lability u/s 61 of CPC; | usage, cannot be parted 139 ‘Scanned with CamScanner(houses tater buildings Belonging oan agriaturit ora bbaureroradomeniczervantocapiedby | bens (d) books of account (e) a mere right to sue for damages; any right of personal service; {stipends and gratuities allowed to pensioners of the Govt or of a local authority or of any other employer; (th) the wages of labourers and domestic servants, whether payable in money or in kind; {salary to the extent ofthe first 1,000 rupees &.2/3 of the remainder in execution of any decree other than a decree for malntenance: FRAG: Judgment debtor 18,000-1000= 18,000 = first 1000 Rs of salary shall not be subject of attachment or sal ry 1s 19,000)-Rs then 18,000*2/3=12,000 ~ 2/3 of the remainder shallnot be subject of attachment or sale. ‘on this way € 1,000 + € 12,000: sale, 13,000 out of total salary (849000) will not be subject of attachment or Pravige: M. Prabhudas & Another v. U. Venkata Ramana & Another 2011: The proviso makesit clear that once the salary of an employee was subjected to attachment for24 consecutive months, no further attachment can be made, in respect of that very decree, though attachment in respect of ather decrees can be made after expiry of 12 months. This whole provisos based on equity and good conscience {a} 1/3 of the salary in execution of any decree for maintenance; [So here 2/3 can be attached] (the pay and allowances of Army Air Force and Navy soldiers; (kj all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 1925 (19 of 1925), for the time being applies Insofar as they are declared by the sald Actnot to be lable to attachment; {a)all deposits & other sumsin or derived from any fund to which the Public Provident Fund Act, 1968, for the time being applies, In so faras they are declared by the sald Act as not tobe liable to attachment; Note [Uotv. Jyoti Chit Fund & Finance, AR 1976: Provident Fund is not attachable). (kb) ail moneys payable under a policy ofinsurance on the life of the judgment-debtor; (ke the Interest of lessee ofa residential building to which the provisions of law for the time being in force relating to control of rents and accommadation apply; Tany allowance forming par of the emoluments of any servant ofthe Govt or ofa rallway company orlocal_| authority which the appropriate Govt may by notification in the Oficial Gazette declare tobe exempt from attachment, any subsistence grantor allowance made toany such servant while under suspension; Scanned with CamScanner\(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest; Mote :(Rajes Kanta Roy v Shanti Debi, AIR 1957 : Contingent interest is not attachable]. (a) a right to future maintenan (o) any allowance declared by any Indian law to be exempt from liability to attachment or sale in execution of adecree;t, (P] where the judgment-debtor is person Uable for the payment of landrevenue, any movable property ‘which, under any law forthe time being applicable to him, is exempt from sale for the recovery of an arrear of such revenus BREEN (AVF S.60 provides that any agreement to wave anyexemptonshallbe vold, ‘The word "decree" in this section refers to money decree. So, 5.60 doesnot apply to mortgage decrees. tit {snot applicable to an attachment before judgment asit isnot an attachment in execution of a decree. ‘Section 61 of CPC: PartiaLexemption of agricultural produce : The state Government may by general oF special order published inthe Official Gazette declare any produce of agricultural tand for the purpose until next harvest season forthe due cultivation of land and support of the Judgement-debtor and his family, ‘exempt that property from being attached or sold in execution ofthe decree. [This section must be read with Order 21 Rule 44 0 CPC.] Oblective ofthis Section : to help an agriculturist to continue agriculture even after execution of decree. Section 62 of CPC: Seizure of property in dwelling-house: This section deals with how movable property isto be seizedin execution? “The terms ofthis section are the same as those ofS. 55 which deals with how an arrest of the judgment- debtor is tobe affected. ‘Section63 of CPC: Property attached In execution of decrees of several Courts (a) where property notin the custody afany Court(s under attachment in execution of decrees of more ‘Courts than one), the Court which shall receive or realize such property andshall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there Iso difference in grade between such Courts the Court under whose decree the property was first attached, (2) Nothing inthis section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees. Mote: This section applies only as between Civil Courts of different grades ar as between Revenue Courts of different grades. It doesn’t apply where one decree Is that of a Civil Court and another that of a Revenue court. ‘Section 64 of CPC states that if any property is attached in execution ofa decree, private alienation (transfer) of such property or any interest therein, after attachment shall be void. Scanned with CamScannerModes of attachment are as follows: The procedure or manner in which different assets or pr tobe attached are mentioned in Rules 41 to 57 of Order 21. These provisions may be explained by the following chart: Type of property Wode ofattachment ‘Movable property (other than agricultural produce) isin possession of the possession of, Judgment-debtor ‘By actual seizure thereof. Butif such property is perishable, or the expense of keeping itis Ukely to exceed Its value, it may be sold. [8.43] Wovable property consisting ofivestock, agricultural implements or other articles ‘which cannot conveniently be attached; ‘By leaving the same in the custody ofa respectable person as the “custodian” 1. 43-A] | Movable property not in possession of the Judgment-debtor; ‘ya written order prohibiting the person In possession thereof from givingit tothe Judgment-debtor[R.45L10] Debt not secured by a negotiable instrument; ‘ya waitten order prohibiting the creditor from recovering the debt & the debtor from paying the debt.(R.46(1a)] ‘Sharein the capital ofa corporations ‘By a written order prohibiting the person in whose name the share stands from transferrin It or receiving dividend, ‘thereon{R, 46(1bI] ‘Share orinterestin movable property belonging tothe judgment-debtor & another Bya notice to the judgment debtor prohibiting him from transferring or chargingit[R.47) Salary or allowance of publicservant ora private employee; ‘By an order thatthe amount shall subject to the provisions cof Section 60), be withheld from such salary or allowances elther in one payment or by monthly instalments.[R, 48 & 48: al Partnership property; ‘By making an order (a) charging the interest of the partner in ‘the partnership property (6) appointing a receiver of the share of the partnerin profits; {€) directing accounts and inquiries; and (a ring sale of such interests. [R. 49) ‘Agricultural produce; by affising a copy of the warrant of attachment,— (2) where such produce isa growing crop, on the land on \hich such crop has grown, or (&) where such produce has been cut ar gathered, on the threshing-floor or place for treading out grain or the like or fodder-stack on orin which itis deposited, 1a Scanned with CamScanner‘also, by affixing a copy on the house in which the judgment debtor ordinarily resides, caries on business or personally works for gain, or last resided, carried on business or personally worked for gain."[R, 44] the produce shall ‘thereupon be deemed to have passed into the possession of the Court. ‘Where applications forthe attachment of growing crop, it shall specify the time at which is likely to be harvested.(R.45] fe instrument neither depositedina | By actual seizure and bringing itinto Court. [R. 51] ‘court norin the custody of a public officer; Property in custody of court or public officer, | By notice to such court or officer, requesting that such perty, and any interest or dividend thereon, may be held subjectto the order ofthe court. (R52) [Attachment of decree jee [R53] ‘Immovable property; ‘Byan order prohibiting the judgment-debtor from transferring or charging tin any manner and all persons from taking any benefit from such transfer or charge. [R54] Section 46 : preceptsi¢.3) rite short note on precepts RB Meaning of Precepts: A precept isan order or direction given by one offilal person or body to another requiring him to do some act within his Province. The Form No.2 of Appendix of CPC prescribes its Form. Inother words, A precept u/s 46 CPC Is only a request of a Court passing the decree to another Court where the decree holder intends to initiate execution proceedings because ofthe judgment debtor having attachable properties within the jurisdiction of the Court to which decree is transferred under Order XXI Rule ecrc, Upon receipt of the precept, the transferee Court shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution ofa decree: ‘The attachment under the precept shal not continue for more than 2 months unless- |. the period of attachments extended by an order ofthe court which passed the decree or Ii the decree has been transferred, before the determination of such attachment, tothe court by which attachment has been made and the decree-holder has applied or an order forthe sale of such property. 143 Scanned with CamScanner ts@.4) Writeshortrote on Gornishee order (SIN Garnishee order: tule A6-A to 46-1 of Order 21 outlines the procedure in case of garnishee orders. ‘Agarnishee orders a common form of enforcing a judgment debt against a creditor to recover money. Put simply, the court directs a third party that owes money to the judgement debtor to Instead pay the judgment creditor. ‘The third party is called a ‘gamishee’. Inother words, AGarnishee is a person who Is the debtor of judgement debtor & under an obligation to pay his debt tojudgement-debtor orto deliver any movable property to him, “Garnishor” isthe one in whose favour the decree is passed Le, decree-holder judgement- creditor). He is ‘the person who brings such proceedings to reach judgement’s debtor money or property held bya third party. ‘A garnishee order helps the debt due by the debtor ofthe Judgement-debtor to be avalable tothe decree- holder without involving him in the sult. Determination of attachment: Determination means the status ofthe attachment at a particular time. In times of cases where the property has been attached but later on the court passes an order dismissing such an execution, the court willdirect the status ofthe attachment, le, whether the attachment will continue oF iscontinue to exist. then the court falls to give clear direction itis considered implied that the attachment hasbeen ceased. Determination (termination) of attachment Rules 55-58, ‘Anattachment underin ep willbe determined nthe following cases: 2} Where the decretal amount is paid or the decree is otherwise satisfied R55 (a), (0). b) Where the decreeireversed, ors et aside; R.S5(c- ) Where the court upholds objection against the attachment makes an order releasing the property; R.58(2). 4) Where after the attachment the application for executions dismissed; R57 «) Where the attaching creditor withdraws attachment; Behati Lal. Saral Kumar, AR 1965 ‘Where the attaching creditor abandons the attachment. Balkrishan Gupta v, Swadesh Polytex Lt, (1985). 1o what he s hound todo under the decree; Mohd. Gaffar Balgv. Mohd. g) Where the decree holder fails ‘Abdul Khaleel, AIR 1957. +h) Where the suit ofthe plaintiffs dismissed; Or. 38 R.9, 1) Were the attachmentis ordered before judgment & the defendant furnishes necessary security; Or. 38 R.9 |) Where there is agreement or compromise between the parties; Behari Lal v.Saral Kumar, AIR 1965 144 Scanned with CamScannerSections 65-67 of CPC deal with sale of property in execution of a decree. &in Order 21, Rule 64-73 deal with “sale generally"; Rules 74-81, with “sale of moveable property’; & Rules 62-104 with “sale of immovable”. Sale generally ; Rule 64 to 73 of Order 21 Rule. of cPc: Power to order property attached tobe sold & proceeds tobe paldto person entitled: Any Court executing a decree may order that any property attached by it & liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sod, proceeds tobe paid to person entitled under the decree torecelve the same. Bala Krishnan v Malaiyandi Konar, AIR2006: the sentence "Necessary to satisty decree" indicate that portion of property which would be sufficient to satisty the decree is only to be sold. This is not justa discretion but an obligation on the Court sale without examining this aspect is illegal. Rule 65 of cP wow made : Save as otherwise prescribed, every sale in ‘execution of a decree shall be conducted by an officer ofthe Court or by such other person as the Court may appoint in this behalf, & shall be made by public auction in manner prescribed. ‘Rule 66 of CPC: Proclamation of sales by public auction willbe prepared after giving notice to the decree- holder & the judgment-debtor, Rule 67 of CPC: Mode of making proclamation (1) Every proclamation shall be made & published, as nearly as may be, in the manner prescribed by ruleS4, sub-rule (2). [According to rule 54, sub-rule (2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or ther customary mod y ofthe order shall be affixed on a conspicuous part of the property & then upon a conspicuous part of the Court-house, and also, where the property is land paying revenue to the Government, in the office ofthe Collector ofthe district in which the landis situate, and where the property is land situate in village, lsoin the office of the Gram Panchayat, if any, having jurisdiction over that village (2) where the Court so directs, such proclamation shal azo be published in the Official Gazette orin a local ‘newspaper, orn both, and the costs of such publication shall be deemed to be costs ofthe sale. {3} Where property is divided into lots for the purpose of being sold separately, it shall not be necessary to ‘make a separate proclamation for each lt, untess proper notice of the sale cannot, inthe opinion of the Court, otherwise be given. Rule 8 of CPC: Time of sale: (except such property described in the proviso to rule 43 i.e. the property subject to speedy and natural decay or when the expense of keeping itin custody is likely to exceed its value) ‘Any property that has been attached and about which the proclamation has been issued, such property can not be sold before the expiration of {atleast 15 days in the case of immovable property; & 145 ‘Scanned with CamSeannerli at least 7 days in the case of movable property, ‘alculated from the date on which the copy ofthe proclamation has been affixed on the Courthouse ofthe Judge ordering the sale, But if the judgment-debtor gives his written consent, the property can be sold even before the expiry of vernentioned period. Rule.69 of CPC: Adjournment or stoppage of sale: {2} The Court may, inits discretion, adjourn any sale hereunder toa specified day & hour, & Where such \djournment is done by the officer conducting the sale at his discretion, he must also record the reason for ded that, where the sale is made in, or within the precincts of, the Courthouse, no such adjournment shall be made without the leave ofthe Court. (2) 1f such adjournment of the sales fora period of more than 30 days, then a new proclamation willbe made ‘under Rule 67, except when the judgment-debtor gives his consent to waive it, Rule 71 of CPC: According to this Rule, the defaulting purchaser will be responsible for the loss in resale'l. ‘the deficiency of price has occurred by reaton ofthe auction purchaser's default. Rule 72 of CPC: Decree-holder not to bid for or buy property without the leave ofthe Court: (1) No decree-holder in execution of which property Is sold shall, without the express permlssion ofthe Court, ‘bid for or purchase the property. [Ganpat Giri vil Addl Distt Judge, AIR 1986 : The lack of permission to id ‘cannot make the sate vold butit can only be. ground for having the sale et aside.) (2} Where a decree-holder purchases, with such permission, then the purchase-money &the amount due on the decree may, subject tothe provisions of Section 73, beset off against one another, (2) Where a decree holder purchases, by himself or through another person, without such permission, the ‘Court may, ift thinks fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; and the costs of such application and order, and any deficiency of price which may happen on the re-sale and all expenses attending it, shal be p holder. by the decree- (2) Notwithstanding anything contained in rule 72,a mortgagee of immovable property shall not bid for or purchase property sold in execution of a decree on the mortgage unless the Court grants him leave to bid for for purchase the property. (2) ifthe bid is made with the permission ofthe cour, then the court will fix any reserved price in respect of, the mortgagee. Rule 73 of CPC : No officer or other person having any duty to perform in connection with any sale shall, clther directly or indirectly, bid for, acquire or attemptto acquire any interest Inthe property sold. 146 ‘Scanned with CamSeannerSale of Movable Property : Rule 74 to 78 of Order 21 Rules 74 to 78 deal with sale of movable property & rules 74 to 75 relate to sale of agricultural produce & growing crops. ‘Section 2(13) of CPC states that ‘movable property” includes growing crops, ‘The definition of movable property is glven differently in many acts, Some of the definitions are as follows: S.220f PC: “Movable property”. The words “movable property" are intended ta Include corporeal roperty of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth, Corporeal property means property Which can be touched by the senses. Section 3 (26) of the General Clauses Act defines movable property as: "Movable property shall mean, Property of every description, except immovable property." ‘Section 2 (9] ofthe Registration Act, 1908 defines property as: "Moveable property’ includes standing timber, {growing crops and grass, fruit upon and juce in trees, and property of every other description, except. ‘immovable property ule 74 of CPC: Sale of agricultural produce :n the case of agricultural produce, the sale shall be held on or near the land on which the crop Is standing ar where the crop has been harvested, at or near the place where the cropis lying. The court may however direct the sale tobe held at the nearest place of public resort, itis ‘of the opinion that the produce may fetch a better price, Such sate shall be postponed by the courtit, (far price isnot offered or (it the owner thereof applies for such postponement. Exceptin the case of agricultural produce for which provision has been made by Rule 74, a sale of movable in ‘execution of a decree should ordinarily be held at some place within the jurisdiction ofthe court ordering the sale, Sufficient and valid reasons ought tobe shown for directing otherwise. Lakshmibalv. Santapa (1888) :A mere contention that a higher price is ikely tobe offered at some other place, is nota good and sufficient reason.. Rule 75 of CPC: Special provisions relating to growing crops 11. Where the property to be soldi growing crop, no sale shall beheld untithe crop is harvested. 2. Where such crop cannot be stored, the purchaser may enter thefield for cutting and harvesting it. ‘Rule 76 of CPC: Negotiable Instruments &shares in corporations : Where the property tobe soldis negotiable instrument ora sharein a corporation, such may be attached & sold through a broker authorised by the Court orin public auction, Here, the word ~ may has the meaning thatthe sale through a broker is permissive, and not obligatory. Aule-77 of CPC: Order 21 Rule 77 deals with the manner of sale of movable property by public auction, 147 ‘Scanned with CamSeanner