23 - Chapter 14
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CHAPTER Xill EXECUTION OF DECREES
STICE and adjudication of a dispute in favour of a STICE Purpose of lav; ts JUo
litigant in itself does no nott mean complete discharge of satisfaction of state's duties
ju stic ice. e. The Th e benefits provided under th e adjudication have under administration of just
to actually reach th the e litigant. Then alone hi s faith in th e system, which constitutes for r advent, survival and growth of th e system, can continue. strongest foundation fo
The word ‘ Execution' has varied meanings. In it s widest sense it signifies th e enforcement of or giving effect effect to th e ju ju dg dgement ement s or orders of courts of justi ju sti ce. dgement ement s by a In a narrower sense it means enforcement of those orders or ju dg
public officer under th e orders and directives of th e court.**1
Execution is th e act of carrying into effect th e final ju ju dg emen ementt of a court or
The e writ authorising a particular officer to carry such ju ju dg dgement ement is other tribunal. Th called execution.**2 In ii s rational and practical sense execution is th e formal method prescribed
ju dg emen t or any other by law, whereby th e parties entitled to th e benefit of th e ju
equivalent obligations may obtain, that benefit.**3
Execution is th e fast stage of a suit whereby possession/recovery of ,
anything/amount recovered by a ju dg emen t is obtained .It is styled as final
process.
**1
HALSBURY S LAWS OF ENGLAND, 4t h EDITION ’
**2
BOVVIET'S LAW DICTIONARY.
**3
BINGHAN JUDGEMENT AND EXECUTION
ON LA W OF EXECUTION AT AT PAGE 2.
REFERRED BY BANERJEE
585
The word execution of criminal means enforcing death sentence.***4 *4
The word execution embraces all th e appropriate means by which a decree is enforced and includes ail processes and proceedings in aid of or supplemental
to execution.**5 Carrying ou t some act or course of conduct to it s completion is execution. It carries th e order in operation.in case of money decree it is th e legal process of enforcing th e ju the e ju dgem dgement ent,, usually by seizing and selling property of th debtor.**6ln chronological terms execution is th e final destination of what began
with litigation in Civii law and prosecution under Penal Law.
The word Execution is no nott defined under Civil Procedure Code. “
”
It is th the e
enforcement of decrees and orders by th e process of th e court so as to enable th e
decree holder to realise the fruits of decree.**7
I
MEANING OF DECREE AND AND VARIOUS TYPES OF DECREES
The essential elements by which a decision of court can be termed
as
decree are:-
(i)
There must be an adjudication.
(ii)
Such adjudication must have been given in a suit.
(iii)
It must have determined th e rights of th e parties with regard to all or any of
th e matters in dispute in th e suit. (iv) (iv)
Such determination must be of conclusive nature and
**4
WHARTON S LA W LEXICON, SWEET AND MAXWELL,
’
14 EDITION
PAGE 387.
**5
AT 118 RAMNARAYAN V/s. ANA ANA NDILA NDILAL L AIR AIR 1970 M P 110 AT
**6
BLACK S LA W DICTIONARY, 6t h EDITION PAGE 568.
**7
th
’
AIR 1972 GUJARAT 1719. STATE OF RAJASTHAN V/s. SAVAKSHA AIR
(v)
586
There must be a formal expression of such adjudication **8
A decision on a matter of administrative nature, or an order dismissing a suit b e termed as decree because they do no t ju di ci all y deal with th e fo r default can not no t be
matter. Order passed by officer wh wh o is no t a court is no nott by decree **9
The Th e Decree should be in a suit.
It is a civil proceeding initiated by
presentation of a plaint, decision o f a Tribunal even though described as decree ‘
’
under th e Ac an d no t Court.**1Q Ac t is a decree passed by Tribunal and
Th The e words ‘ formal expression means it must be deliberate and given in th e
Decree
manner provided by law.
’
entt and must be drawn up follows th e ju d g em en
separately.**11 An order ’ on th e other hand is formal expression of decision of civil court, ‘
which is not no t a decree.
The Th e decree conclusively decides th e rights of th e parties with regard to th e
matters. An order is a decision made at interim stage during th e progress of suit.
‘
CIVIL PROCEDURE BY JUSTICE C. K. THAKKAR, AT PAGE 9 4t h
* 8
EDITION.
DEEP CHAND V/s. LAND ACQUI, A CQUI, OFFICER, (1994) 4 SCC 99 (102).
**9
SHAKUNTALADEVi V/s. KUNTALKUMARI, AIR AI R 1969 SC 575.
**10
**11
DIWAN BRUS. V/s. CENTRAL BANK OF INDIA. AIR 1976 SC. 1518
DIFFERENT TYPES OF DECREES The various types of decrees that can be passed under th the e Civil Procedure Code are as follows
PARTICULARS.
DECREE Decree in original
(i) (i)
Not falling under any specific class listed below.
Preliminary Decree
(ii) (ii)
When further proceedings have to be taken
before th e suit is disposed off. Preliminary decree are no t executable.lt is only final decree
**12 which can be executed. executed.**12 (iii) (iii)
(iv)
Final Decree
When adjudication completely disposes of f th e
Partly Preliminary and
A Decree fo r possession and mesne profits
Suit **13 Suit
can be preliminary fo r mesne profits and
Partly final.
final for fo r possession. (v)
Order rejecting a plaint
It does no t include order returning a plaint.
(vi)
Order or adjudication
Order 47 deals with questions to be
determining question
determined by court executing decree and 144
under sec.47 or 144
with application fo r restitution.
Consent Decree
A consent decree can never be a contract only
(vii)
though it requires free consent of both th the e
parties. It is is th e result result o f adjudication and reason of such adjudication is consent of parties.**! 4
**12
AIR 1963 SC VENKATTA REDDY V/s. PETTY REDDY, AIR SC 992.
**13
SHANKAR V/s. CHANDRAKANT, AIR 1995 SC 1211
**14
TRIBHUVAN
LALLUBHAI SHAH V/s. CHHITALAL SHAH, AIR 1963
GUJARAT 256.
588
(viii) Exparte Decree
Decree passed in absence of a Defendant.
(ix) Decree passed in appeal it is an appellate decree although an appeal is Continuation of litigation between th e parties. (x)
Decree on compromise
It is passed in petition filed by both parties.
petition. (xi) Conditional Decree
Decree with inbuilt conditions forming part of th e decree.
be passed under
Under th e Civil Procedure Code Preliminary Decrees can
following provisions.
PROVISIONS Order 20, rule
PARTICULARS . Suit fo r possession and mense profits.
2
Order 20, Rule 13
Ad mi ni st rat io n Suits.
Order 20, Rule 14
Suit fo r Pre Suit Pr e emption.
Order 20, Rule 15
Dissolution of partnership.
Order 20, Rule .16
an d Ag Suits fo r accounts between principal and Suits Ag ent .
Order 20, Rule 18
Suit fo r partition and separate possession.
Order 34, Rule 2-3
of mortgage Foreclosure of mortgage
Order 34, Rule 4 -5
Sale of mortgaged property.
Order 34, Rule 7-8
Redemption of mortgage.
The decrees cover various subjects like decree to orders passed by th e
Execution”” , th e enforcement of orders passed under court, in context of th e word “ Execution various other laws also can be included. various
As on 31/3/93, all banks in India taken together had 5,41,813 cases pending fo r execution involving Rs.984.93 Crores.
The Th e illustrative lists of such orders, which can be executed, ar are e as under
(i)
Order under section 27 of Ad mini mi ni st rativ rat iv e Tribunals Ac t finally disposing of f an appeal.
An order under Arbitration and Conciliation Act, 1996, which can be
(ii)
enforced in manner as provided under Civil Procedure Code. (iii)
Orders under Companies Act Act c^n be enforced in same manner as decree of
a Civil Court.**15
Order under article 226, 227, 32 of Constitution of India read with Section 12
(iv)
of Contempt of Courts Act. section 25 of Consumer Protection Act, Act, 1986.
(v)
Order under
(vi)
Orders passed
by co-operative Tribunals under Co-operative Co-operative Societies Act. Act. Order for recovery under Section 8, 8-B, 8G of Employees Provident Fund
(vii)
Act, 1952.
(viii)
Orders under Section 45, 45-C,
74 and 75 of E.S.f. Act Act can be enforced as
decree.**16 Orders passed under Family Courts Act 1984 can be executed as decree
Order under Section 222 to 226, 232 of Income Tax Act, 1981 can be so
(ix)
enforced. Award of a Tribunal or Labour
(x)
be enforced
Court.** 17 including an arbitration award can
Act award of Court under that Under Section 26(2) of Gurdians and Wards Act
(xi)
Act shall be deemed to be a decree
Act, 1988, **18 the amount due under an award can Under Motor Vehicles Act,
(xii)
be recovered as arrears of land revenue.
(xiii) (xiv)
The claims of Municipalities can also be enforced in this manner. certificate **19 Public Moneys can be recovered by issue of recovery certificate
(xv)
Under Section 31 of Workman Compensation Act amount payable can be
recovered as arrears of land revenue.
**15
SECTION 634 OF THE COMPANIES ACT.
**16
ACT w.e.f. 1/9/91. INSERTED IN E.S.I. ACT
**1 7
SECTION 11 -B, I.D.ACT AMENDED AMENDED w.e.f. 22/7/87
**18
SECTION 174 OF M. V. ACT. ACT.
**19
ACT. GUJARAT PUBLIC MONEYS RECOVERY ACT.
590
elaborate those statutory provisions where th e claim can be recovered in as
The purpose of citing th the e aforesaid list which is not exhaustive is to
effective manner as decree though they are not no t passed by Civil Courts.
Il Illl
COURTS WHICH MAY EXECUTE THE DECREE The general rules as laid down Under Section 38 of CPC is that, th e decree ‘
may be executed either by th e court, which passed it it,, or by th e court to which it is sent for fo r execution.
The words Court which passed th e decree needs further ellaboration and ’
‘
th the e expression includes includes the following courts
1.
The Court which actually passed th e decree (Court of first instance)
2. 2.
Court of first instance in appellate decree. Court
3. 3.
The court of first instance if it ceases to exist th the e court which would have
ju juri risdi sdi ct ctio ion n to tr y th e suit at the time o f execution.
Where th e court of first instance have ceased to have juri ju risd sdic icti tion on to execute
4. 4.
th the e decree th e court which at th e time of execution would have had th e ju ri sd ic ti on to tr y th the e suit.**20
if court A passes th e decree and thereafter part of th e area within th the e ju ri risd sd ic ti on of that court is transferred to court B, th e Supreme Court has held that
execute it by reason of th the e subject matter being transferred to ju ri sd ic ti on of
th e court which actually passed th the e decree does no t loose Its ju ri sd ic ti on to
another court. The position whether B court can also execute th e decree is not
dgement ement s of High Courts on that very clear because there are conflicting ju dg point.**21
**20
AVA RA1994 2 SCC 642. RAMAKUTTY V/s. AVA
**21
MERLA RAMANMA V/s. NALLPA RAJU AIR AIR 1956 SC SC 87
591
As a genera! rule territorial ju ju ri sdic sd icti tion on is a condition precedent for fo r a court to execute decree. Neither th e court which court which passed passed th e decree no r th e court to which it is sent fo r execution can execute it in respect of property lying outside territorial
jur isdict is dict ion. However if th the e bond is executed before a court it remains in .operation
till formally discharged by registrar of concerned court.**22 ***22
Anot An other her important
point is that a decree passed by court without juris ju ris di dicti cti on is nullity and its invalidity can be be set up whenever and wherever it is sought to be enforced even at th e stage
ju ri sdi ct ctio io n whether pecuniary or territorial strikes at th e of execution. A defect of juri
very authority of th e court to pass a decree and such a defect can not be cured
even by consent of parties.**23 Generally an executing court is no nott required to go
behind th e decree and it has to execute th e decree as it is .
It can however
examine th e issue whether th e decree was passed by a court without ju ri sd ic ti on
and may not execute th e decree if it finds so.**24 The objection as to dispute on
ju ri sd ic ti on has to be taken at earlier stage and when th e ju ju dg ement emen t debtor di d not raise objection on receiving execution application, th e execution can be proceeded
with.**25 From th e point of view of delays th e opportunity to challenge at th the e stage
of execution sometimes opens another round of litigation. Objections as to such ju ri sd ic ti on s are raised in mechanical manner, which deprives th e decree holder of the fruits of th e decree.
In respect of territorial ju ri sd sdic ic tion ti on,, if it is lacking th e decree can no t be
executed. As held by Calcutta High Court, th e High Court has no power to attach it s Civil Jurisdiction.**26 The or sell property situated outside territorial limits of its
court which passed a decree may on th e application of th the e decree holder send it
fo r execution to another court of competent ju juri risd sdic icti tion on under th e provisions relating to transfer of decree.
**22
CITIBANK.N.A.V/S.INDO AMERICA AM ERICA N ELECTRICAL LTD.AIR1981 DELHI 27
**23
KIRAN SINGH V/s. CHAMAN AIR
**24
KUBER BANK LTD, V/s. STATE OF WEST BENGAL 63 C.W.N. AT PG-21
**25
AN AND BHAVAN BANK 1954 PAJ. L W 571 BEDAMl V/s. ANAND
**26
DEKUNIA BANKING CORP. 58 OWN AT PAGE 61.
1954 SC 840.
.
592
TRANSFER OF DECREE may y have to be transferred to some other Situations warrant that th e decree ma
court fo r th e purpose of execution.
The Th e court which passes a decree may on
application of a decree holder send it fo r execution to another court under following circumstances: -
If th e person against whom th e decree is passed actually and voluntarily
1.
resides or carries on business or personally works fo r gain within th e ju ri risd sdic ic tion ti on of such other court.
ju ri sd ic ti on If th e person does not no t have property within th e local limits of th e ju
2. 2.
of th e court, which passed th e decree sufficient to satisfy such decree and has property within local limits of ju juri risd sd icti ic ti on of such other court.
If th e decree directs th e sale or delivery of immovable property situated
3.
outside th e local limits of th e juri ju ri sdi ct io n of th e court.
If th e court which passed th e decree considers fo r any other reason to be
4. 4.
recorded in writing th e decree should be executed by such other court.
The word Court means court of competent juri ju ri sd sdic icti ti on. **27
The court to which decree is transferred fo r execution shall have same powers as th e original court and persons disobeying or obstructing th e execution of
decree are punishable in th e same manner. Th The e transferee court however can no t travel beyond th e decree.**28
If th e matter is transferred from on e court to other fo r administrative reasons say from second court to fourth court both courts are competent.**29
**27 **28
**29
SECTION
39 39 OF CPC
GANGARAM V/s. MAHESH AGRAWA AGR AWA L AIR 1984 DELHI 233
STATE BANK PAGE 292.
OF HYDERABAD 1963 2 AN ANDHRA DHRA WEEKLY REPORT
593
From various decided From decided cases on execution
of
decrees th e following principles
can be worked out:-
ISSUE INVOLVED
LEGAL POSITION
Territorial Jurisdiction
a condition precedent fo r executing
It is
a decree and therefore court ca can n not execute a
decree in respect of property which which is situated outside its it s territorial ju ju ri sd ic ti on .**30
executing court court has to take th e decree The executing
Legality o f Decree
as it stands and has no no power to vary or modify it s correctness. it s terms or de novo examine its
Inherent lack lack of jur is isdi dict ctio ion n
‘
*31
Decree passed is a nullity if there is Inherent
ju sdic icti tion on and there is no lack of juri risd no question of
going behind it.**32
Effect of Death
if a decree is otherwise executable death death of
ju dg emen em entt debtor does no t affect it s validity .**33 .**33
Law w Operation of La
law w a decree becomes If by operation of la by subsequent amendment it can inexecutable, by
again become executable.**34
**30
MATHAI V/s. VARKEY AIR AIR 1964 SC 907.
**31
STATE BANK OF INDIA V/s. INDEXPORT REGD.(1992)3 SCC-169
**32
CHANGAL CHAN GAL VAREYA V/s. JAGANNATH -1994,1 SCC - 2
**33
AI R 1979 SC 1915. PARBATIDEVI V/s. MAHADEV PRASAD. AIR
**34
DULAREY V/s. THIRD ADDL., ADDL., DIST.JUDGE 1084,3 SCC 99
594
Subsequent Development
The executing court can look into question of
executability or otherwise of the decree and become examine whether the decree has become inexecutable by by subsequent developments of fact or law. law.* **35 **35
Vague and ambiguous terms
In such case the
In decree
construe the decree to ascertain its its precise precise
executing court can
purpose can refer to meaning and for that purpose judgement judgem ent and plead pleading ings.** s.**36 36
Amendment of Decree in
Where a decree is transferred for execution
Appeal
and it is modified in appeal court can execute
modified decree after amendment of execution
application. Provisions in Civil Procedure Code Provisions relating to Transfer of Decree
are purely purely procedur procedural al and lays down the the adjective law law for execution of decree
and can can not therefore regulate substantive rights of parties.**37 parties.**37
Change in relief granted
Even if there is change in circumstances
the executing court has no powe power r to plaintiff. mould relief granted to plaintiff. Powers of Transferee court
The court to which decree decree is transferred powers as if it for execution has the same powers had passed .**38 passed the decree decree itself .**38
**35
SCC 611. SUDHIR V/s. BALDEV 1969 3 SCC
**36
BHAWAN WAJA V/s. HANUJi KEODAJI AIR 1972 SC 1374.
**37
RAM RAO V/s. VENKATRAO AIR 1963 A P 154.
**38
LAW RELATING TO EXECUTION BY M. S. PAI, REVISED BY DR. N.
MEHRA SWAMY, 2n d EDITION PAGE 68
595
If immovable proper property ty
Properties at Different Different places places
form formss one estate
and is situate within jurisdiction of two or more courts anyone of such courts can attach and sell the whole estate.
Transfer to other state
If the decree
is is sent for execution execution to
other state state it will be be executed by such courts in such manner as may be be in force in that force that state (and not in as per the rules of state where decree decree was originally passed.) passed.) **39 **39
Hence the overall position about the decree being Hence being immune from challenges is quite uncertain and even at the stage of execution there is sufficient scope for
side to dispute validity of delay the proceedings. the other decree and thereby the V
EXECUTION IN CASE OF PEITH OF JUPOEBBENT PEBTOH
The Average life of litigation in India is substantially long and hence there are several cases where the judgement judgement debtor has expired by the time the decree
is passed passed and execution proceedings proceedings are initiated. The decision as to how decree
be executed involves interpretation of not only the Civil Procedure Code and can be other substantive laws but also of the personal personal laws of the community to which the
judgement debtor belonged. judgement belonged.
Under the Hindu Law, where the son (or his descendents) are joint joint with their father and debts have been contracted by the father in his capacity as manager
joint family are and head of the family for family purpose, the sons as members of joint
bound to pay the debts to the extent of their interest in coparcenany prop property erty.. Hence the liability Hence liability is not personal personal and is only to the extent of estate inherited.**40
**39
SECTION 40 OF CIVIL PROCEDURE CODE.
**40
MULLA, HINDU LAW, 17™ EDITION, BUTTER WORTHS, PG. 442 VOL.I
case where father
The position regarding mortgage is settled by
a
mortgaged property to discharge his antecedent debt and the bank filed suit on on
to mortgage and before filing of suit by the bank. bank.
mortgage interalia against the father and his minor son. There was partition of joint
family property subsequent
Mortgage was held binding on the son.**41
a Mohammedan Mohammedan
The position under the Mohammedan Law is that when
dies Intestate the vesting of estate will be proportionate to their respective shares shares
The heirs hold the estate subject to the payment of ail the prior
of inheritance.
claims The estate can be distributed among the heirs anytime after death. *42 ’
Decree passed in ignorance of death of plaintiff is mere irregularity and it
can still be executed. The executing court can not refuse execution of the decree decree on the ground that decree is passed after death of a person. Vs/hen a legal representative of the deceased creditor files application for being substituted in the
execution proceedings initiated by the creditor, the application is undoubtedly one one for execution of decree.**43 In
judgement-debtor before issuing of notice to him, his his case of death of judgement-debtor
legal representatives must be brought on record and be served with notice. Failure Failure
to do so makes the sale inoperative **44 However whete a sale proclamation has has
been legally drawn up after notice to the judgement debtors under this rule and and
one of the judgement judgement debtors dies subsequently, a fresh proclamation need not be be drawn up after notice is already issued to persons who are entered as his heirs. Where the share of a member of an Hindu Undivided Family is attached in
execution of decree and he dies thereafter, but before the sale of property in
execution, the validity of sale is not affected the failure to bring on record his legal representatives, as as the sons who were already on record sufficiently represented
**41
**42
AIR 1964 SC 1425 V. PILLAI V/s. CHANDIL BANK AIR 1425
PRINCIPLES OF MOHMMADAN LAW NISHI PUROHIT 1997 EDITION AT AT PAGE 422.
**43 A PARTI PANDA V/s. GOVIND SAHU, AIR AIR 1984, CIVIL 1 (6) **44
BANERJI ON LAW OF EXECUTION PAGE 909.
597
th e estate of th e deceased. When th e decree is passed passed th e court is approached to
pending th e execution proceedings his hi s heirs can be substituted without a proceed on tile basis of application fo r execution. So where a decree holder dies
succession certificate.**45
procedure in respect of this point is elaborated under Order 22 of th e Civil Death during pendency of suit also creates various difficulties. The detailed
Procedure Code and Is Is listed in tabular form as under
initiate proceedings Legal heirs of decree holder can initiate
Decree holder
after moving an application fo r that purpose.
Th e execution can continue against th e legal heirs.
Judgement debtor
Th The e liability of legal heirs is to th e extent of estate
inherited.
Purchaser of property
If initial initial deposit is made and thereafter auction
purchaser expires, hi s legal heirs can make remaining payment and acquire the th e property.
VI
EXECUTION AGA A GAINST INST SURETY Th e word Surety* in th e context of execution has wider meaning. ‘
‘Surety ’
as defined under th e Indian Contract Ac Actt means a person wh o has given
guarantee ir i favour of the th e creditor fo r performance of a financial obligation on
whose behalf tiie same is given.
principal debtor.**46
EDITION PAGE 1006. **46 SECtlpN 126 OF INDIAN CONTRACT ACT ACT..
**45 LA W OF SUCCESSION, N P BASU.. 6t
His liability is coextensive with that o f th e
h
598
decreetal amount is to be realised first from the person and properti properties es of the
The decree under execution may however specifically stipulate that the
principal princ ipal debtor.
execution against the guarantor can proceed only if
In In such case
decree-holder fails to realise the decreetal amount from the person and properties properties
prin cipal debtor. of the principal debtor.* * **47 **47 In In the cases where
decree is against borrower borrower and guarantors and the bank bank
filed execution against the guarantor, the objection by by the guarantor that bank bank has
not taken any step against the mortgaged property was turned down by the
Supreme Court.
Hence a creditor can proceed against any of the judgement judgement
debtors whether a prin principa cipall debtor or otherwise. otherwise.**48 **48 The trial court or executing
court also can not direct direct that creditor should postpone postpone the execution of decree until until
exhausting the remedies against the principal debtor or security provided by him **49
Similarly in a case before Punjab and Haryana High Court, the plea that that
unless the hypothecated goods are sold the prope property rty of guarantor can not be
attached was not alowed by the negative.**50 Another context in which the word
person who stands surety "Surety is used in Civil Procedure Code is in context of person ”
for performance performance of a decree. Where any person person has has furnished security or given a guarantee.
(a)
For the performance performance of any decree or any part part thereof or
(b) (b)
property taken in execution of decree For the restitution of any property decree or
fulfillment of any condition imposed on any For the payment payment of money, or for fulfillment
(c) (c)
person, under an order of th the e court in any suit or in any proceeding
consequent thereon,
**47 **48
DEEP CHAND V/s PUNJAB NATIONAL NATIONAL BANK, 1990 (ISJ) BANKING- 356.
INDIA V/s. INDEXPORT REGD. AND OTHERS. II,
STATE BANK OF
(1992) BC 243 (SL)
**49
BC 47. G. D. RAO V/s. BANK OF INDIA AND OTHERS I (1996) BC
**50
RAJINDERSING V/s.PUNJAB & SIND BANK 1994,ISJ BANKING-P&H-123
599
The decree or order may be executed in the th e manner herein provided fo r execution of decrees, namely
(i) (i ) If h e has rendered himself personally liable, against him to that extent.
(ii) If he has furnished any property as security, by sale of such property to the th e extent of security.
and such person, giving guarantee/furnishing security shall be deemed to be a
party to execution .**51
The court may postpone execution .proceedings provided third party’ s immovable property is given as security and when such security is furnished and
title deeds also are deposited, it creates equitable mortgage and even without
registration such mortgage can hold good.**52
The court can expedite the recovery of money b y issuing such orders at th the e stage of execution.
The
surety in such case ensures convenience of court and
th e decree holder and execution proceedings c an certainly be expedited b y also the
resorting to this provision. In such cases, th e liability o f person wh o stands surety
arises because of failure of ju ju dg ement debtor to comply with his hi s obligation. This
ensures an additional mechanism created by the th e court to ensure performance o f ju dg ement th the e obligation by th e ju emen t debtor through surety.
it
The surety is required to execute a document called surety bond and is to be interpreted according to th the e terms and conditions mentioned in it and n o t
independent of such terms.**53 The surety also can take th e plea of fraud,
discharge o n ground of fulfillment of condition or adjustment, without h is consent between creditor and debtor and raise defence to that effect.
**51
**52
**53
145, CIVIL PROCEDURE CODE, AS AMENDE AMENDED D w.e.f. 1/2/1977.
SECTION
ROYAL PRINTING WORKS V/s. ORIENTAL BANK OF COMMERCE AIR-
1990-AP-120.
AN D ORDERS M.S.PAI LAWS RELATING TO EXECUTION OF DECREES AND PAGE
178 SECOND EDITION.
-
600
be made against the surety. Such an An order in course of execution can be
order aiso in itself operates as decree and unless appealed and set-aside operates
several bond is enforced against one out of several judicata.**54 **54 Even if the surety bond res judicata. is released it does not operate as discharge of others and sureties or one of them
as
liability though joint join t and several is not distinct distinct.**55 .**55
To enforce the liability of surety surety it is necessary that notice to the surety is a
surety.
condition precedent for initiating valid proceedings against property made otherwise is bad attachment of his property bad in law.
th the e
Any
The dominant object of the provis provision ion is to pro provid videe effective summary
remedy for enforcement of liability of person person who has furnished the security. There
is no need to file separate suit by by the party for whose benefit benefit the security has been been
furnished or guarantee has been been given and enables him to execute decree as if he party to the suit and also a principle principle debtor.**56 were a party If the
defendant fails to appear, or file written statement, an exparte decree defendant
passed ed under Order 9, Rule 8 of Civil Procedure Code and upon may be pass
application of the defendant it may also be set aside.
The court has power to
impose condition under such such circumstances. In such cases court may direct that a
be passed person shall stand as surety for performance performance of any decree that may be passe d on
ff
the
rehearing, defendant, defendant, such suit is reheard and decree is passe passed d against such decree can be be executed against surety also and in such case a separate suit
for enforcing it is not necessary. The summary procedure procedure applies to the surly for performance of any decree whether original or appellate.**57 **54
**55
BANERJEE = LAW LAW OF EXECUTION, 4t h EDITION, PAGE 513.
- CIVIL COURT PRACTICE MANUAL, 10 EDITION 1997,
SARKAR
th
P.340. BY SUDIPTO SARKAR / V R MANOHAR.
**56
**57
STATE BANK OF INDIA V/s. SARKARIA SUGAR MILLS(1986), 2SCC 145. MULLA, CIVIL PROCEDURE CODE, 12t h EDITION, PAGE 376.
-
601
The position can be summed up by saying that th e power to direct for producing surety/furnishing security if exercised judi ju di cio usly us ly can prove of great help
in solving th the e delays involved in execution.
Ex parte decrees or execution
proceedings should not be set aside unless th e reciprocal obligation is created on
defendant to comply with this provision.
The Law Commission has observed that inordinate delays do frequently
occur at various stages of th e execution application.
They can be attributed to
personal factors, procedural factors and defects in law relating to execution which provides to o many safeguards against the law relating to exeeution.**58
VII
SATISFACTION OF DECREE BY PAYMENT It is no t necessary that th e payment should be made only after decree is passed and execution is applied for.
The Civil Procedure Code provides an inbuilt mechanism under which th the e
defendant in a suit to recover a debt or damages may, at any stage of th the e suit, deposit in court such sum of money as he considers sufficient fo for r satisfaction in full
of th e claim. The notice of such deposit shall be sent to plaintiff. The plaintiff is no t
entitled to any interest on such amount after th e notice.
The plaintiff may also
accept such amount and prosecute hi s case fo for r th e balance or accept it in full
satisfaction of the th e claim.**59
under this provision has to be unconditional fofor r th the e interest cease. The tender also should be not no t a mere intent but accompanied by payment. The tender to be valid must also be fo for r th e entire amount and must be kept good, that means the bonafide intention to pay must
The tender of money
**58
LA W COMISSION OF INDIA, 1 4t h REPORT, VOL,!, PAGE 435.
**59
ORDER 25, CIVIL PROCEDURE CODE.
o02
appear and money has to be actually deposited or tendered.**60 * *60 Aft er th e decree
th e stage of execution also, scope fo r an amicable, out of court is passed, at the
settlement is left open. If any money payable under a decree of any kind is paid out of court or th the e
decree of any kind is adjusted elsewhere in whole or in part to th e satisfaction of
th e decree holder, th e decree holder has to certify such payment or adjustment before th e court and it will constitute payment towards decree. If th e decree holder does not no t inform then ju ju dgem ent debtor may inform th the e
court about such payment or adjustment and on hi s application, court may issue notice to the decree holder as to wh why y such payment should no t be recorded,
The payment under a decree can be made in any of th e following modes (i)
By depositing into executing court or by postal order or through bank.
(ii)
Out of court by Postal money order or though bank.
(iii)
Otherwise as directed under the the decree.
If th e payment validly made is refused, then th e interest shall cease to run. outt of court, To enable th e ju dg ement debtor to make payment through bank or ou
Law Commission of India had recommended that such payment should be given
du e recognition and law is amended accordingly. **61
Whenever payment is so
received it is to be applied first towards interest and thereafter to th e principal Am ou nt .**62
**60
AND AMIRAL CODE OF CIVIL PROCEDURE BY SIR WOODROFFE AND AMIRAL I, 3r d
EDITION, PAGE 2306.
-
AT PAGE 174. LAW COMMISSION OF INDIA AT
**61 **61
27™ REPORT
**62
LIFE INSURANCE CORPORATION OF INDIA LTD. V/s. GADADHAR AIR
OF
1978, CAL.419.
603
The concept of " Cessation Cessation of interest" which is consistent theme underlying aii th e provisions, indicates conclusively that th e payment has to be first applied
“
towards interest. As per Himachal Pradesh High Court th e words any payment' does no nott admit any exception and should be given it its s natural meaning. **63 If any
compromise is arrived at between th e parties, it also amounts to adjustment as
contemplated and unless it is properly recorded as per prescribed procedure, no
for r payment of Money does no nott recognition can be given to it. it . The Th e words Decree fo
“
”
include within its it s ambit th e mortgage decrees. A decree fo for r sale of property in
nott a decree fo r payment of money. In simple mortgage suit or fo r mense profits is no
mortgage and other mortgages whenever expressly stipulated, th e decree fo r
payment of money may be passed and such decree is a money decree fo r which th e rules stated above can apply, A A payment made in accordance with these rules constitutes valid discharge.
The court has a discretion, in case of decree fo r payment of money, to
postpone period of payment or grant instalments. The general tendency on part of ju dg ement debtor^ is to pray fo r maximum number of instalments and this is on e of
th e reasons fo r delay. Even when th e court is inclined to grant instalments, some balancing acts in form of security/surety from which full payment can be recovered
The ends of ju st stic ic e perhaps do no t meet by enabling th e ju dg emen t debtor to delay th e execution
in case of default in payment of instalments is needed.
infinitely. nott It is a settled position of law that th e power of granting instalments does no
apply to mortgage decrees.
In case of usufructary mortgage th e practice in
England is to grant annual rests in respect o f mortgagee in possession and total amount of rents and profits are chargeable to mortgagee against whole amount
single payment and has th e effect of preventing great injustice to th e
due. The practice in India, compels th e mortgageeto receive his hi s money by on e
mortgagor. **64
**63
AIR 1988 H P 33. PUNJAB NATIONAL BANK V/s. P. S. CHAUDHARY, AIR
**64
RASBEHARY GHOSE ON LA W OF MORTGAGE, 7t h EDITION PAGE 613.
o04
When decree is fo r payment in instalments, limitation runs from th e date of each default. **65 * *65 To prevent multiplicity of proceedings and give some additional relief to decree holder against defaulting ju dg ement debtor, terms of th e decree
may provide that in default of payment of specified instalments the th e whole amount
seek
under th e decree shall fell due du e at once and th e decree holder can
enforcement of such clause upon happening of event so specified. A money th e property of decree by itself does not decree no t create any charge, lien, claim or right over the
The decree holder has to follow ail th e procedures stipulated under the th e law to create such
ju dg emen t debtor.
No vested right is created by virtue of decree.
exclusive rights in hi s favour.
The ju dg ement debtor who makes payment also has to comply with procedural formalities as stipulated under th e law. Even when he makes payment
by deposit, notice/intimation to decree holder is mandatory.
Mere deposit in
absence of any notice and intimation will no t entitle th e ju ju dg dgement ement debtor to plead
that he is not liable liable to pay interest. **66 If th e payment is made for fo r limited purpose
of complying condition imposed by court while granting stay of execution, such
no t constitute a payment o r deposit towards satisfaction of
payment will
decree.**67
The validity of payment made by cheque was examined by th e Bombay High Court in one of th e cases cases from Baroda. In that case compensation awarded
by Joint Dist. Judge, Baroda (MACT (MACT Tribunal), stipulated 31/7/84 as last date.
**65
ART.136. LIMITATION ACT, LIMITATION ACT, ART.136.
**66
M. MATHAI V/s. HINDUSTAN ORGANIC CHEMICALS LTD. AIR 1995, SC
**67
1572.
STATE OF GUJARAT V/s. GANGAJ, 1996(2) CURRENT CIVIL CASES P.325, GUJ.
o05
The cheque deposited was realised on 27/8/84 and claimants prayed fo for r
interest. The Bombay High Court held that payment made by tender of cheque on last day should be considered good tender within time and it was error on part of executing court to direct payment of further interest **68
With th e advanced
technology fo r remittance of funds by th e banks cheques (if realised) should constitute valid mode of payment**69
The time involved in realisation of cheque also results in disadvantage to
th e decree holder. The realisation of cheques cheques takes several weeks to months and
till such time th e cheque is actually debited in ju dg ement emen t debtor s accounts he
’
enjoys th e funds. Hence payment by Demand Draft/Banker s cheques seems to ’
be more balanced and ju st . With effect from 1/4/89, th e Negotiable Instruments Act has been amended
and bouncing of cheque fo r insufficient funds constitutes criminal offence. When
such cheque is given towards payment of decree it is necessary that prosecution
under th e provisions of Section 138 is initiated in case of bouncing, so that
ju dg dgement ement debtor does no nott benefit by having on e more round of litigation.
¥111 ¥11 1
EXECUTION APFELCATION APFELCATION AND AND PROCESS Execution application is th e first step towards enforcement of decree through th e machinery of court of law.
The execution application can be filed by th e following (i)
Decree holder himself.
(ii)
Legal representatives of decree decree holder if th e decree holder is is dead.
**68
UNION OF INDIA V/s. JAGVANTi BAI, 1995(4) CCC 451 451 (BOM.)
**69 AIR 1989 SC 1551.
606
An y person claiming under th e Decree holder.
(iii)
Transferee of Decree holder wh o has given notice to transferor and
(iv)
ju dg em emen entt debtor.
An y on e or more of th e Decree holders where it is fo r benefit of all and no
(v)
contrary intention is indicated.
ca n be applied against:The Th e execution can
(i) Th e ju ju dg em ement ent debtor if he is alive. d gem ge m ent en t debtor. (ii) Ag ain st legal representatives of ju
deceased, which has come to their hands.**70 Rules 11 of Civil Procedure Code
Th e legal heirs shall however be liable only to th e extent of property of
lays down detailed requirements as to seeking enforcement of decree in various
modes. Th The e application fo r execution has to be in form No.6 of appendix E to th e
First Schedule.
Th e defect in form is no t fatal.
should be in accordance accordance with law.
Th e execution application
Th e application fo r execution
must contain in tabular form th e following
particulars **71 (a)
Th The e number of th e suit.
(b)
Th e names of th e parties.
(c)
Th e date date of t he Decree.
(d) (d ) (e)
an y appeal is preferred from th e decree Whether any payment or other adjustment adjustment is made. Whether any payment
(f)
Whether any an y previous application is made fo r execution of decree.
(g) (g )
Th e amount with interest du e upon th e decree.
(h)
Th e amount o f costs (if any) awarded.
(i)
Name of persons against whom execution o f decree is sought.
(j)
Th e mode in which assistance of court is required.
**71
362. CIVIL PROCEDURE, B Y JUSTICE C. K . THAKKAR PAGE 362.
**70
ORDER 21, RULE 11 CIVIL PROCEDURE CODE.
607
Court m ay also require th e applicant to produce a certified copy of th e
decree.
Th The e various stages of procedure after filing of application have been given in tabular form as under
STAGE
PARTICULARS
The e court will ascertain whether execution application Scrutiny and Admi Ad mi ss ion io n Th Complies with t h e requirements and if so it will admit
and register it . Time will be given to rectify defects involved.
Hearing
Court before before which th e application is pending will fi x a
date fo r hearing and pass order as it deems fit. date
Show Cause Notice
Th e law as a general rule does no t require any notice to
be issued fo r execution. However in certain cases such
ha s to be issued. ‘ *72 It will be necessary when. notice has
application is made tw o years after date of
If
decree or more more than 2 years after th e date of last order made on an anyy previous application.
Where
application
is
made
against
ju dg emen em entt debtor, representatives of a ju
o
legal
an y of th e superior courts of Decree is passed by any any reciprocating reciprocating territory. Appl Ap plic ic ation ati on is made against assignee or receiver in insolvency.
o
Decree is fo r payment of money an and d execution is sought against person of ju em entt debtor, dg emen
o
**72
Appl Ap plic ic ation ati on
is made against a person w ho has
furnished security o r given guarantee. furnished
ORDER 21. RULE 22 OF CIVIL PROCEDURE CODE.
o
608
Ap pl ic ati on is made by transfree or assignee of
decree holder.
The Th e compliance of aforesaid provisions is mandatory and
a
is
condition
precedent
fo r
validity
of
proceedings.**73 * *73 *
If th e person to whom notice is sent sent does no t appear
Procedure after notice
and when th e court sees no cause to th e contrary process will be issued fo r execution of decree
It is no t mandatory that th e execution applications must be accompanied by If in execution of mortgage decree there is an omission to give notice to on e of th e legal representatives of th e mortgagor then
certified copy of th e decree.**74
of th e th e execution is no t wholly void bu t should be setaside to th e extent of share of concerned legal representative.
SX
STAY OF EXECUTION As is evident from voluminous dates from various courts submitted in th e
thesis, the decree is passed after several years of contested litigation. The decree
far r as that court is concerned, if such a constitutes final adjudication o f dispute as fa
decree, obtained after longdrawn legal battle can be stayed, it will be great injustice and harm no t only to th e concerned litigant but bu t even to th e very cause of ju di ci al system because any dispute should atleast have a finality.
Justice Misra of Gauhati High Court has therefore held...
**73 **74
SATYANARAYAN (1993). 4 SCC 414. REHMAN V/s. TRIPURA MODERN BANK AIR A IR 1972, GAUHATI 61.
609
a decree has been obtained by a party and he should no t be deprived of th e
fruits of decree except fo r good reasons.
Until th e decree
is set aside, it stands
good and it should no t be lightly dealt with on th e of f chance that another suit suit to set
aside the decree m ay succeed.
The decree must be allowed to be executed and unless an extraordinary
case is made out, no stay should be granted. Even if if stay is granted, it must be on suitable terms so that earlier decree is no t nullified"**75 suitable
The Th e
stay orders granted in casual manner were causing serious
embarrassment to decree holders. Hence under th e amended provision if decree is fo r payment of money and court grants stay without requiring security, it shall
‘
have to record reasons fo r such order. *76 The of Civil Procedure Code Th e provisions of regarding stay of suit suit tr y to balance th e conflicting interest of th e ju ju dg emen t debtor and th e decree holder.
The execution of decree, if it is final decree, can therefore be stayed only
under following circumstances (i)
The executing court shall on sufficient cause being shown and on th e
ju dg emen t debtor furnishing security or fulfilling such condition, as may be
ju dg emen t debtor to apply to court which passed th e decree on the th e
imposed, stay execution of decree fo r reasonable time to enable th e
appellate court fo r stay of execution. Such order does no t prevent th e court
from restarting th e proceedings. The executing court is bound by th e order of of court, which passed decree.**77
**75 **76
**77
JUDHISTHIR V/s. SURENDRA AIR A IR 1969, ORI 233. TEJA SINGH SINGH V/s. GRINDLAYS BANK LTD. (1982), 3 SCC199.
GURINDER SINGH V/s. HAMALA KAUR, (1982) 2 SCC 54.
(i'i)
olO
judgement debtor, if a suit is pending between the decree holder and the judgement
the court, in which the suit is pending, may upon judgement debtor
furnishing security or otherwise stay execution. The purpose is to enable
the parties to adjust their claims against
proceedings. multiplicity of execution proceedings.
each
other and to prevent prevent
has held that for stay of execution the following
The Supreme Court
conditions need to be be satisfied: -
(i)
There must must be be two simultaneous proceedings in one court.
(ii) (ii)
proceedings are by by judgement The proceedings judgement debtor against against the decree holder and by by
decree holder against the judgement judgement debtor.**78 The powers are discretionary, so that frivolous litigations just just to thwart the the
be controlled. execution proceedings proceedings can be
X
TYPES OF DECREES AND
VARIOUS
A.
THEIR MOPE OF EXECUTION GENERAL
Elaborate procedures procedures have been been laid down for execution of various types of
decrees. By virtue of the very nature of such decrees special intricacies may be involved and specific remedies maybe provided provided under the law to meet with such situation.
Money decree involves payment of money and the prescribed mode for
judgement debtor, attachment of his movable and execution includes notice to the judgement
immovable properties properties and sale thereof. The executing court also has a power to to
order arrest and imprisonment of judgement judgement debtor in exercise of its jurisdiction jurisdiction within the framework prescribed within prescribed under the law.
**78
KRISHNA SINGH V/s MATHURA AHIR, AIR 1982 SC 686. .
611
Provisions fo r garnishee also constitutes an important aspect of law of
execution. Garnishee is a person wh o owes money to th e ju ju d g emen em entt debtor or is
under obligation to deliver any an y movable property to him. Through th e mechanism of th e garnishee order th e ju ju dg em emen entt debtor is prevented from realising hi s debt without discharging hi s obligation under th e decree. An ot her important mechanism to execute th e decree is precept. Precept is
an order or direction by th e court which passed t h e decree to other court which
an y property belonging to would be competent to execute th e decree to attach any ju dg em emen entt debtor.
Th e main object underlying th e provision of precept is to ensure interim
Th e attachment effected in furtherance of a precept is valid fo r 2
attachment of th e property.
execution.
It is th e first step initiated by th e court to fecilitate
months and decree will have to be transferred fo r execution.**79 Th e procedure
fo r garnishee order requires a notice to garnishee under rule 46 A of order 21.
If
such notice is no t given th e whole process becomes futile. An y amount lying to th e credit of th e ju ju d ge gem m en entt debtor can be attached by following garnishee procedure.**80 Shares, security and other movables belonging
emen n t debtor can also be attached and sold in execution o f decree by to ju dg eme following this procedure. Th e ju ju dg emen em entt debtor ma may y also make th e part payment of
th e amount fo r making payment for the remaining amount. B.
SPECIFIC MOVABLE PROPERTY
When th e decree is fo r any an y specific movable property, th e execution can
take place in any an y of t he following made (a)
an d delivery of th e property. By seizure and
(b)
By detention o f the judgement debtor.
(c)
By attachment of hi s properly.
(d)
By attachment and detention both.
**79
A IR 1957 A HINDUSTAN BICYCLE V/s. NATH BANK AIR AP P 209
**80
S. KRISHNA BHATT V/s STATE BANK OF INDIA 1990 BANKING CASES 119
612
Money is no nott covered within th e definition of movable property and there is
separate procedure fo r money decree.
Provisions as stated above apply only to specific movable property in possession of th e ju dg emen t debtor and if it is in possession of third party th e
procedure prescribed under this provision does no nott apply .**81
If th e court is satisfied that th e property to be delivered does no t exist in
such case th e court may also direct th e
specie fo r some other reason then in
decree holder to disclose th e market value of th e property,**82 as an alternate to
th e delivery of th e property. In respect o f certain movables of importance it is n o t
possible to workout th e money value. Even if a decree is silent th e executing court
can fi x th e amount if th e attempt to recover th e property is fruitless. If th e property
condition in which decree holder is entitled to get
to be delivered is n o t in th e same
it , then th e court can determine compensation to be paid.
DOCUMENT AND AND NEGOTIABLE INSTRUMENTS
C.
If th e decree is fo r execution of a document, th e process of execution
involves signing
of
such documents by th e ju dg m ent debtor.
ement nt When ju dg eme
debtor neglects or refuses to obey or comply with th e decree, th e court shall after
giving opportunity to th e decree holder as well as to th e ju ju dg emen t debtor, prepare
th e draft of th e document in accordance with th e terms of th e decree and execute
such document. Such document shall have same effect as th e execution of th e document by th e party himself.
If th e decree is fo r endorsement of a negotiable instrument and th e
ju dg emen t debtor neglects or refuses to obey th e decree, th e court after giving an an
opportunity shall prepare draft of endorsement and endorse it accordingly. It shall
have same effect as endorsement by party or h is order to endorse it.**83
81
“
**82 “
SECTION 51-A AND A ND
83
ORDER 21
A G VENKATNARSINHA V/s.
RULE 31 OF CPC.
VIJAYALAXMi AIR A IR 1982 MAD.329 DB.
ORDER 21 RULE 34 OF CPC.
613
IMMOVABLE PROPERTY
D. D.
A A court executing a decree has th e power to attach th e property and sell th e satisfy th e decree. property or portion thereof which is sufficient to satisfy
Af After ter such attachment th e first step is issuing proclamation o f sale. Such a
proclamation shall be prepared after notice to both th e sides and shall comprise of following deteils:-
1.
Time and place of sale.
2.
Details of property or part thereof to be sold.
3.
Revenue if an any y attached to p roperty.
4.
Encumbrance to which th e property is liable Am ou nt to be recovered under th e decree
5.
.
.
Such other particulars which court considers material.
6.
Service of notice is a mandatory requireme requirement nt and non-compliance will vitiate
th e entire proceedings.**84 ***84
The Th e proclamation shall be affixed on the conspicuous part of th e property. It
should also be published in th e manner directed by court. The Th e purpose of having
stage o f proclamation is to protect th e interest of intending purchasers by giving to protect th them all material information and also to protect interest of ju ju dg emen t debtor by
facilitating him hi m to fetch proper market price. The Th e sale of immovable property can no t take place without consent of ju dg emen t debtor before before expiry of 15 days on th e
date of proclamation.
The Th e court h as discretion to adjourn th e sale further bu t if th e sale is Th e adjourned for more than 30 days a fresh proclamation is required to be issued. The adjourned
ju dg ement eme nt debtor h as a right prevent th e property from being sold by paying th e right to prevent
amount til! such time th e property is knocked down.
Decree holder can ca n no t bi d
without express permission of th e court. It is no t obligatory on part of th e court to
pu putt th e entire property o f ju dg emen t debtor to sell.
sufficient, only only that much should be sold.**85
**84 **85
DESH BANDHU V/s ANA ND19941 SCC131. V/s ANA
If part of th e property is
JAMILABIBl V/s. STATE BANK OF TRAVANARU 1s t 1991 BC 284.
614
It is quiet likely that a third party may raise objection to th e attachment of
property. In such case court has to proceed fo r adjudication of th e claim.
Th e The
property is already sold then no such claim can be entertained.
If th e
court may
also no nott entertain such claim if it finds that th e claim or objection was designed to
unnecessarily delay the proceedings.
XI ARREST A RREST AND A ND DETENTION OF JUDGEMENT DEBTOR In th e execution application th e decree holder can insist that th e decree be
executed by arrest and detention of th e ju dg emen t debtor.
If such a prayer is
made in execution application, th e court will instead of issuing a warrant, issue a
notice calling upon th e ju dg emen t debtor to appear before th e court on a day to be
specified in th e notice and show cause wh y he should no nott be committed to civil prison. Such a notice will no t be necessary if th e court is satisfied by affidavit or
otherwise that such notice will result in delay in t he execution proceeding or th e
ju dg eme ement nt debtor is likely to abscond or leave local limits o f th e court.
If th e notice is no t complied warrant for fo r arrest will be issued. Such warrant
may direct that unless th e specified amount is paid th e person should be brought
before th e court.
The Th e order fo r arrest and detention should no nott be passed in
mechanical manner.
Mere failure to pay does no t ju just stif ify y arrest and detention of ju dg emen t
debtor. In words of ju st stic ic e Krishna Iyer. **86 “
Th The e provision needs to establish no nott mere omission to pay bu t an attitude
of refusal on demand and dishonest disowning of th e obligation under th e decree. Here
th e
consideration
of debtor s ’
other pressing
needs
ju st ic e..
” ”
strained
We would by this construction sauce law with
circumstances will play prominently.
**86
and
JOLLY GEORGE V/s. BANK OF COCHIN, AIR A IR 1980, SC 470.
615
has expressed great sympathy for the judgemen judgementt
Justice Krishna Iyer
it is no
debtor in distress and has remarked that in this land of Daridranarayan
crime and to recover debts by procedu procedure re by putting one in prison is violative of willful failure to pay Article 21 unless there is proof proof of minimum fairness of pay inspite
of sufficient means.
The decision if applied in its true spirit virtually makes the provision for
such arrest a dead letter. The application for arrest will generally be be objected on such grounds and execution of decree will get delayed further.
Another important pro provis vision ion connected with arrest is for paym payment ent of
judgement debtor shall be arrested in execution of subsistence allowance. No judgement
as the Judge
pays into court such sum decree unless and until the decree holder pays
thinks sufficient for subsistence of judgement debtor from time of his arrest until he he
person n is committed to Civil priso prison n the is brough broughtt before before the court. When such perso
court will fix his monthly subsistence allowance and such amount will have to be be
paid by the decree holder in advance. The amount can be recovered as cost of
execution.
the court then the application
before judgement debtor appears before If the judgement
for arrest for imprisonment imprisonment will be heard and appropriate appropriate orders orders will be be passed .**87 will be
defeat or delay the execution of the decree with malafide intention then such
Whenever the court is convinced that the object of the judgeme judgement nt debtor is to
powerss to send judgement power judgement debtor to civil prison should be exercised. Similarly if
judgement debtor undertook to deposit the judgement deposit the decreetal amount with interest and cost, the default will will justify justify the arrest and imprisonment.**88
A woman can not be be arrested and detained in civil pris prison on in execution of
decree for payment payment of money. Even in decree for restitution of conjugal rights a woman can not be be arrested.
‘*87
**88
RULE 39 ORDER 21 OF CPC.
JAGDiSHCHANDRA V/s. PUNJAB NAT NATION IONAL AL BANK AND OTHERS. 1s t
1993 BC175. VOL. 1993
616
Xil
ATTA AT TACHMENT CHMENT OF PROPERTY M EXECUTION
elaborate provisions for attachment of
The Civil Procedure Code makes
property in execution. The court is vested with power to order execution of decree decree by attachment or sale or sale without attachment of the property situated within its
not a condition precedent for sale.**89
jurisdiction. Sale of property without attachment is not void and attachment is local jurisdiction.
The general rule is that ail-saleable ail-saleable
property whether movable or immovable belonging to judgement debtor can be
attached. Section 60 of the the CPC lays down the list of properties, properties, which can not be be
attached. Thus wearing apparel, utensil, tool of artisans, houses of agriculturists,
wages, salaries, pensions and gratuities, right of maintenance etc. can not be
attached except and and to the extent permitted under section 60. The mode in which various properties may be attached are as given below:-
TYPE OF PROPERTY
1. Movable property in possession possession
of judgement debtor
MODE OF ATTACHMENT ATTACHMENT
by by actual actual Seizure and sale if the property is subject to speedy and natural decay. **90
order prohibiting person in 2. Movable property not in possession by order possession by of judgement debtor
possession from giving it to judgement debtor.
3. Negotiable instrument
by actual seizure and bringing it to court.
4. Debt not secured by a negotiable
By an order-prohibiting creditor from
Instrument
recovery of the debt and debtor from paying the debt with a directive to
deposit the amount in court.
**89
KRJSHNALAL V/s. BHAGWAN 1973 GLR 820.
**90
TIKKA V/S. STATE OF UP AIR AIR 1961 SC 803
617
5. Share in a company
by on order prohib prohibiting iting the holder from
transferring it or receiving dividend. property by notice to the judgement debtor 6. Share or interest in movable property
prohibiting prohib iting
him
from
charging it.
7. Salary or allowance of employee
transferring
or
by an order that that amount shall be withheld
allowances. from such salary or allowances.
8. Partnership property property
by making an order o
Attaching the interest share of the partner and
partnership Appointing a receiver of the share o
Directing production production of accounts. accounts. Ordering sale of such interest.
property 9. Property in custody of other other court by notice requesting that such property
or officer
10. Decree for payment payment of money or
may be be held subject to order of the court
By an order of such court.
Sale in enforcement of a mortgage a
or charge. 11. Agricultural produce produce
By affixing copy of warrant on the land and on the house where judgement debtor resides.
12. Immovable property property
By an order proh prohibiti ibiting ng judgement judgement debtor from charging or transferring it.**91
*
‘91
SATYANARAYAN V/S. RAMANARAYAN 1393 4SCC 414
ol8
been described as seizing another s property and involves involves Attachment has been ’
the act or process proc ess of taking, apprehending or seizing the property property and bringing bringing the
same in custody of the court. It is mainly used to seize the debtor s propert propertyy in order to secure the claim of the the creditor.**92 **92 The orders of attachment if promptly promptly
’
judgem ent debtor from passed may effectively effectively prevent prevent the judgement from transferring his property property and expedite the compliance of decree including payment payment of money. XIII
OBJECTION AND CLAIMS
After issue of orders for attachment/proclamation, the court adjudicates adjudicates
upon the claims to or objections in respect of attachment of property property in execution
of decree. Such objections are raised by by judgement debtors or third parties parties on the
ground that property is not liable to attachment.
Before ordering sale of the
proceeding with execution the court has to first proceed proceed to property propert y or otherwise proceeding
adjudicate upon the claim or objections in accordance with the provisions
contained under Civil Procedure Code.**93 Such claim or objection however can
property attached has been already sold or where the court not be be entertained if property court
considers that the claim or objection will unnecessarily delay the proceedings. All
attached) arising between the parties to a proceeding or their representatives
questions (including questions relating to right, title or interest in the property under this rule and relating to adjudication of claim or objection shall be be dealt with
by the court dealing with the claim and not by separate suit. determination of the the questions referred to above:-
The court upon upon
Allow the claim or objection and release the property property from attachment either
(i)
wholly or to such extent as it thinks fit, or
(ii)
Disallow the claim or objection.
(iii) (iii)
Continue the attachment subject to any mortgage, charge or other interest
in favour of any person, person, or (iv)
Pass such
order, as in the circumstances of the case it deems fit.
**92
BLACK S LAW LAW DICTIONARY 6t h EDITION AT PG.126.
**93
ORDER 21, RULE 58 CIVIL PROCEDURE CODE.
’
620
If there are ar e several properties and several ju ju dg emen t debtors th e executi
court has th e discretion to decide against which and whose properties t execution may be be first initiated.
If th e ju ju d gem ent debtor s possession is disputed and there is subseque ’
dispossession after decree fo r possession is complied with, a suit to obtain su possession can ca n be initiated .**96
The Th e guarantors raise objections fo r initiating action first against princif
debtor, his hi s properties and securities provided by him. Th e Keraia High Court h held that against a guarantor execution by arrest and detention in th e prison c
no nott be ordered unless th e court is satisfied that he has th e means to pay atlej
of th some substantial portion of th e decretal debt. Th e proceedings in such case m be stayed .**97 If a company, under process of liquidation liquidation starts proceedings of execution
is not no t entitled to seek protection of section 446 of Companies Ac t, to debar oth
defending their property.**98 persons, from defending
XIV
EXECUTION SALES The Th e sale in Execution proceedings m ay be of 1. 1.
Movable Property
2.
Immovable Property
**96
GEORGE A A NTO NTOB B Y V/S. KERALA STATE FIN. CORP. IC (1991) B C 9
**97
UMA SHANKAR V/S SARABJEET 1996 SC 1005,1000
**98
.
AI R 1989, KAR.38. VELAYUDHAN V/S. STATE BANK OF INDIA, AIR
621
If the sale is of agricultural produce it should be conducted on or near th the e
place where such crop is grown or at threshing floor etc.
The saie may be
postponed if fair price is no t offered or if market market is held in in that area till next market sale. In case of negotiable instruments th e sale can be made through a broker.
An y irregularity in publishing or or conducting th e sale does no t vitiate th e validity of
If th e movable property is in custody of th e court it may be physically
sale.
If it is with a third party th e delivery shall be made by directing person in possession no nott to gives th e same to ju dg emen ementt debtor or
delivered to th the e purchaser.
anyone else except except th e purchaser .**99 **99
If th e movables sold ar are e shares of a limited company company th e purchaser is not no t entitled as a matter of right to have hi s name entered in th e register of company
and he is subject to th e provisions of articles of association applicable to ail transferees and hence saie have to transferees to transfer th e shares in hi s name.
dgem ent debtor are Moneys payable under a life Insurance Policy of ju dgement
entirely exempted exempted from attachment and sale by virtue of provisions of section 60(1) (kb) of Civil Procedure Code and th e position does no nott change change wheiher th e money
is is received during hi s lifetime or after th the e death.**1Q0 in respect of immovable property th e execution sale may be made by any court other then a small causes court.
Where there is an order fo r sale of immovable property and th ju dg emen ementt the e ju
debtor can satisfy th e court that there is reason to believe that th e amount of
decree maybe raised by mortgage or lease or private saie of such property or any or of any other immovable property of th e ju ju dg ement emen t debtor, th e court part thereof or
may postpone such sale on such terms and fo for r such period as it thinks proper to
enable hi m to raise th e amount.
The court in such case will grant certificate
authorising ju ju dg emen t debtor to carryout such transaction.**! 01
ORDER 21, RULE 79 CIVIL PROCEDURE CODE.
**99
**100 FEDRAL BANK LTD. V/S. SMT. INDIRA DEVI A AND ND OTHERS AIR 1986
BOM. 101.
**101 ORDER 21, RULE 83 OF CIVIL PROCEDURE CODE.
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