concept of execution

8/17/2019 Concept of Execution

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Concept Of Execution

INTRODUCTION

Execution is the last stage of any civil litigation. There are three stages in litigation:

1. Institution of litigation.

2. Adjudication of litigation.

3. Implementation of litigation.

Implementation of litigation is also no!n as execution. A decree !ill come into existence !here

the civil litigation has "een instituted !ith the presentment of plaint. #ecree means operation or

conclusiveness of judgement. Implementation of a decree !ill "e done only !hen parties has

filed application in that regard. A decree or order !ill "e executed "y court as facilitative and not

as o"ligation. If a party is not approaching court$ then the court has no o"ligation to implement it

suomotto. A decree !ill "e executed "y the court !hich has passed the judgement. In exceptional

circumstances$ the judgement !ill "e implemented "y other court !hich is having competency in

that regard.

Execution is the medium "y !hich a decree% holder compels the judgement%de"tor to carry out

the mandate of the decree or order as the case may "e. It ena"les the decree%holder to recover the

fruits of the judgement. The execution is complete !hen the judgement%creditor or decree%holder

gets money or other thing a!arded to him "y judgement$ decree or order .1

1http://www.lawctopus.com/academike/concept-execution/

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MEANING

The term &execution' has not "een defined in the code. The expression &execution' means

enforcement or implementation or giving an effect to the order or judgement passed "y the court

of justice. (imply &execution' means the process for enforcing or giving effect to the judgement

of the court. Execution is the enforcement of decrees and orders "y the process of court$ so as to

ena"le the decree%holder to realise the fruits of the decree. The execution is complete !hen the

judgement%creditor or decree%holder gets money or other thing a!arded to him "y the judgement$

decree or order.

Illustration:

A files a suit against ) for *s 1+$+++ and o"tains a decree against him. ,ere A is the decree%

holder. ) is the judgement%de"tor$ and the amount of *s 1+$+++ is the judgement% de"t or the

decretal amount. (ince the decree is passed against )$ he is "ound to pay *s 1+$+++ to A.

(uppose in spite of the decree$ ) refuses to pay the decretal amount to A$ and A can recover the

said amount from ) "y executing the decree through judicial process. The principle governing

execution of decree and orders are dealt !ith in (ections 3- to / 0 su"stantive la! and order 21

of the code0 procedural la!.

(upreme ourt in Ghanshyam Das v. Anant Kumar Sinha dealing !ith provision of the code

relating to execution of decree and orders$ stated$ & so far as the uestion of executa"ility of a

decree is concerned$ the ivil 4rocedure ode contains ela"orate and exhaustive provisions for

dealing !ith it in all aspects. The numerous rules of 5rder 21 of the code tae care of different

situations providing effective remedies not only to judgement%de"tors and decree%holders "ut

also to claimant o"jectors$ as the case may "e. In an exceptional case$ !here provisions are

rendered incapa"le of giving relief to an aggrieved party in adeuate measures and appropriate

time$ the ans!er is a regular suit in the civil court.2

2 http://delhihighcourt.nic.in/writereaddata/upload/courtrules/courtrulefle_e6va2gcv. pd

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http://delhihighcourt.nic.in/writereaddata/upload/courtrules/courtrulefile_e6va2gcv





PRINCIPLES IT! REGARD TO E"ECUTION O# DECREE

AND ORDER

•4rovision of pc relating to execution of decree and order shall "e made applica"le to

"oth Appeal and (uit.

• A decree may "e executed "y the court !hich passed the judgement and decree or "y

some other court !hich is having competency to implement the judgement passed "y

such other court.

• The court !hich passed the decree may send it for execution to other court either on

application of the applicant 0decree%holder or "y the court itself.

• A court may order for execution of decree on the application of decree on the application

of decree holder 0a "y delivery of any property !hich !as in possession of judgement%

de"tor and decree has "een specifically passed concerning such property 0" "y

attachment and sell of the property of the judgement%de"tor 0c "y arrest and detention

0civil imprisonment 0d "y appointing a receiver 0e in such other manner !hich depends

upon nature of relief granted "y the court.

• 6pon the application of decree%holder$ the court may issue &percept' to any other court

!hich is competent in that regard.

• All uestions arising "et!een the parties to the suit in the decree shall "e determined "y

the court !hile executing the decree and not "y separate suit.

• 7here a decree is passed against a party as the &legal representative' of a deceased

person and decree is for payment of money out of the property of deceased person$ it may

"e executed "y attachment and sell of any such property.



• A judgement%de"tor may "e arrested at any time and on any date shall reuired to "e

"rought "efore the court !hich has passed the decree and his detention may "e in civil

prison of the district !here decree shall have to "e executed.

• 7here immova"le property has "een sold "y the court in execution of a decree such sell

shall "e a"solute. The property shall "e deemed to "e invested in the favour of purchaser$

and the purchaser shall "e deemed as a party to litigation.

• The court to !hich decree is sent for execution shall reuire certifying to the court !hich

has passed decree stating the manner in !hich decree has "een implementing concerning

the fact of such execution.3

Special $a% to &e reser'e$ for execution (or)

Execution of decrees should receive the same attention from the ourts as original civil !or

and should "e methodically and regularly dealt !ith$ as expeditiously as possi"le. 7here

parties have to "e heard or evidence recorded in the course of execution proceedings$ notice

should "e given$ processes issued and dates fixed as in the case of original suits. As a rule one

day during the !ee should "e reserved for execution !ors so as to ensure proper attention

"eing paid to it8 some times t!o days are necessary. #istrict 9udges are responsi"le for seeing

that proper arrangements are made for execution !or "y all courts su"ordinate to them.

All or$ers to &e recor$e$ &% t*e +u$,e in *is o(n *an$

All orders passed in the execution proceedings should "e carefully and distinctly put on record

in chronological order. The practice of !riting orders at the "ac of the tal"anas or

applications at stray places in the file leads to confusion and !astes the time of the ourts and

the la!yers. The initial office report should "e put up on a separate sheet of paper !hich may

form the first page of the 9udge s autograph and all orders except those of a formal nature‟

should "e recorded "y the 4residing 5fficer !ith his o!n hand in a separate record of

supra note 2.

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proceedings as in a civil suit. Every formal order also should "e signed "y the 4residing

5fficer.

Distri&ution of execution (or) &% District +u$,e

#istrict 9udges should record standing orders regulating the distri"ution of applications for the

execution of decrees among the ourts su"ordinate to them$ providing for the disposal of

cases in !hich decrees !ere passed "y officers !ho have ceased to "e attached to the district$

and for carrying on the execution proceedings already pending "efore such officers at the time

of their ceasing to "e employed therein. In framing such orders$ every ourt should "e

reuired as far as possi"le$ to execute all decrees passed "y itself8 "ut$ !here this is not

possi"le and it is necessary to send the decree to another ourt for execution$ care should "etaen to see that it is a ourt of competent jurisdiction

-Section ./0123. ourt shall demand to "e a ourt of ompetent jurisdiction$ if at the time of

maing the application for the transfer of decree to it$ such ourt !ould have jurisdiction to try

the suit in !hich such decree !as passed (ection 3;03 added "y Amending Act$ 1;-<.

District +u$,e to see t*at execution (or) is not ne,lecte$ in lo(er

Courts

lose supervision and control should "e exercised "y #istrict 9udges over the execution of

degree "usiness pending in all ourts su"ordinate to them8 and !here any officer is found

ha"itually to neglect this "ranch of !or or to dispose of it in a perfunctory manner$ he should "e

reported to the ,igh ourt.

Application for sta% of execution

All applications for stay of execution should "e treated as urgent.

Presi$in, Officer to see t*at 4one% realise$ on (arrants *as &een

accounte$ for

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To prevent defalcation$ presiding officer should$ !hile hearing execution applications$ verify "y

personal inspection of previous !arrants issued "y him that any money previously realised "y the

execution "ailiff or process server has "een duly accounted for in the =a>ir s accounts or ‟

other!ise disposed of through those accounts. /

COURTS COMPETENT TO E"ECUTE DECREES

Courts co4petent to execute

(ection 3 of the ode of ivil 4rocedure define the ourts "y !hich a decree may "e executed.

A decree may "e executed "y$ the ourt to !hich passed it$ or "y any ourt to !hich it is

transferred for execution. It should "e noted that the expression ?ourt !hich passed decree has‟

"een defined in (ection 3 so as to include certain ourts other than ourt !hich actually passed

the decree.

Transfer of $ecree fees for preparation of unnecessar% $ocu4ents @7hen a

decree is transferred "y the ourt !hich passed it to another ourt for execution$ the documents

mentioned in 5rder I$ *ule -$ must "e sent to the latter ourt. The !or in connection !ith

the preparation of these documents should "e done "y ourt officials holding permanent

appointments$ on payment$ in the first instance$ "y the person applying for the transfer of the

decree of a fee of *e. 1. The amount so recovered shall "e credited to Bovernment under the

head ?I%A@Ca! and 9ustice@ourts of Ca!@Beneral Dees$ Dines$ and Dorfeitures@Dees

levied "y ourts .‟

A decree%holder$ ho!ever$ may at his option file !ith application a copy of his decree

duly stamped in accordance !ith Article of (chedule I$ to the ourt%fees Act$ II of

1F+$ and !hen he does so$ he shall "e exempted from the fee of *e. 1$ prescri"ed in this

paragraph$ the remaining documents "eing prepared "y the officials of the ourt !ithout

further payment "y the decree%holder.

! #haf$ur rehman v. mohd. %ahan &egum '1()2* 2 #++ !"6.

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Execution pen$in, receipt of or$er of transfer of $ecree

A provision has "een made in 5rder I$ *ule 1+$ ivil 4rocedure ode as amended "y the

4unja" ,igh ourt$ to ena"le the decree%holder to apply for immediate execution through the

ourt !ithin !hose jurisdiction the judgment%de"tor is$ "y producing merely the decree and an

affidavit of non%satisfaction pending the receipt of a formal order of transfer under (ection 3;$

ivil 4rocedure ode. G

C*annel of trans4ission of $ecree transferre$

7here the ourt to !hich a decree is to "e sent for execution is situate !ithin the same district as

the ourt !hich passed the decree$ the ourt passing the decree$ shall send the same directly to

the former ourt. )ut$ !here the former ourt is situate in a different district the ourt$ !hich

passed the decree$ shall send it to the #istrict ourt of the district in !hich the decree is to "e

executed. 05rder I$ *ule G of the ode.

Execution of transferre$ $ecrees

6nder 5rder I$ *ule F of the ode of ivil 4rocedure$ 1;+F$ a decree sent under the

provisions of (ection 3; for execution to another district may "e executed either "y the #istrict

ourt to !hich it is sent$ or "y any (u"ordinate ourt of competent jurisdiction to !hich the

#istrict ourt may refer it$ and$ under (ection /2$ the ourt executing the decree has the same

po!ers of execution as if the decree had "een passed "y itself. The execution files of such cases

should remain !ith the record of the ourt "y !hich the decree is executed$ and should not "e

returned to the ourt "y !hich the decree !as passed.

A4ount realise$ on transfer of $ecrees to &e certifie$ an$ note$

A certificate sho!ing the extent to !hich the decree has "een executed is reuired$ "y (ection /1

of the ode of ivil 4rocedure$ 1;+F to "e sent to the ourt !hich passed the decree$ as to

execution so certified$ and the particulars should "e entered in that ourt s register of ivil suits‟

" ,atel naran&hai v. dhula&hai '1((2* ! scc 26!.



under the head ?*eturn of Execution in order to prevent a ?dou"le execution "eing taen out in‟ ‟

any other district.

Re,ister of $ecrees transferre$ an$ $ecrees recei'e$ &% transfer5 To ensure compliance !ith

order I$ *ule - of the ode the ,igh ourt has prescri"ed a register in Dorm IIII of part

A%I of ,igh ourt *ules and 5rder$ olume I%A$ #ecrees transferred to other courts and

those received "y transfer are sho!n on the t!o sides of the same page in the register.

PROCEDURE IN E"ECUTION:

(ection G1 to G/ tals a"out procedure in execution or mode for execution.

Section 67: this section gives the po!er to court to enforce the decree in general. This section

defines the jurisdiction and po!er of the court to enforce execution. Application for execution of

decree under this section may "e either oral 0order 21 rule 1+ or !ritten 0order 21$ rule 11.

4arty has to choose the mode of implementation of decree. ourt may execute decree as per the

choice prayed "y the decree%holder or as court may thins fit.-

Mo$e of executin, $ecree un$er section 67:

0a. )y delivery of any property specifically decreed. 4roperty may "e mova"le or immova"le

0". )y attachment and sale of the property or "y sale !ithout attachment of the property. 6nder

clause 0) of section G1 it is !ithin the po!er of court to attach the property if it is situated

!ithin its jurisdiction.

0c. ourt can execute decree "y mode of arrest and detention. no execution of decree "y arrest

or detention of judgement%de"tor unless reasona"le opportunity is given in the form of sho!

cause notice as !hy he should not "e imprisoned.

6 http://kaienlex.&logspot.in/21!/12/drat-o-execution-petition.html

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0d. It can "e executed "y appointing a receiver. 7ithin the purvie! of this section it is

permissi"le to appoint decree%holder himself as the receiver of the judgement%de"tors land.

H lause 0e is the residuary clause and comes into play only !hen the decree cannot "e executed

in any of the modes prescri"ed under clause 0a to 0d.

Section 61: Enforce4ent of $ecree a,ainst Le,al representati'e:

(ection G2 deals !ith a case !here the decree is passed against the legal representative of the

judgement%de"tor.

(ection G2 01 empo!ers a creditor to execute his decree against the property of deceased in the

hands of legal representative so long as it remains in his hand. Dor application of this clause the

decree should have passed against the party as the legal representative of the deceased person$

and it should "e for the payment of money out of the property of the deceased.

(ection G2 02 empo!ers a creditor to execute his decree against the legal representative

personally if he fails to accounts for the properties received "y him from deceased person.

Exception to section 61: 1. ourt can implement the decree against the personal property of

the legal representative provided if he is avoiding$ neglecting or evading to mae the payment

from the property of deceased.

1. 7here he has misutili>ed the property of deceased and !here the legal representative has

alienated the property of the deceased person.

Section 6.: Lia&ilit% of ancestral propert%8

=o legal representative should "e held personally accounta"le !here the suit has "een filedagainst a joint ,indu family unless he has received some property of joint ,indu family.

6nder pious o"ligation if has received the property of joint ,indu family then !ill "e held

lia"le. 7here the decree has "een passed against arta$ no execution "e made against the son

#upra note .

(



under pious o"ligation if the decree is passed after partition. Event after partition a son can "e

held lia"le if suit !as pending "efore partition.F

The son !ill "e held accounta"le if after the death of arta the decree has "een executed and

son has distri"uted the property of arta among themselves. The mem"er of joint ,indu family

!ill "e held lia"le if arta has taen de"t for moral purpose or family purpose.

The nature of suits determines ho! decree should "e implemented.

Illustration: a promissory note has "een executed "y the father for the purpose of "orro!ing

money. After the death of father the creditor instituted proceeding against son.7here suit is filed

"asing on promissory note first it !ill "e seen that !hether suit is maintaina"le or not% if it is

filed !ithin three year then the suit !ill "e maintaina"le. Beneral rule is that son !ill "e held

lia"le if they have received ancestral property.

7here the son is not having no!ledge a"out execution of promissory note$ in such case !ill not

"e held lia"le even though has received the ancestral property.

Section 69: Partition of estate or separation of s*are8

(ection G/ comes into play !hen a decree has "een passed for partition$ or for the separate

possession of a share of an undivided state paying revenue to the government$ that is the partition

of the state or share !ill "e made "y the collector. ,o!ever if the collector refuses to mae the

partition of the revenue paying property$ the civil court can do so.To attract the provision of this

section it is not necessary that the plaintiff should as for the division of government revenue.

(ection G/ deals !ith a case !here though the civil court has the po!er to pass a decree yet it is

not competent to execute the same. 6nder this section the execution of decree shall "e made "y

collector .;

) #upra note ).

( 0nand nivas pvt. td. . kal3an4i5s pedhi 07 1(6" #+ 26!.

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PROCESS #OR E"ECUTION

5rder 21 rule 2/ and 2G tals a"out process for execution.

Rule 19: process for execution

The court has inherent po!er to defer issue of process as envisaged under rule 2/ and can give

time to judgement%de"tor in appropriate cases.

*ule 2/ prescri"es the procedure in case of execution of decree. In these matters the court

exercises judicial discretion$ !hich cannot "e interfered !ith "y the district judge "y issuing

administrative order.

According to 2/03 execution must "e completed "y the date specified on the process for the

purpose% 7arrants for delivery of possession$ therefore$ ceased to "e executa"le after expiry of

the date appearing on the !arrant.

After the process of execution is issued$ rule 1 of order 21 cannot "e invoed for amendment of

execution application. If the amendment sees to change the nature of execution$ the po!er

under section 1G1 and 1G3$ also cannot "e invoed.

Execution procee$in, on t*e $eat* of t*e $ecree*ol$er:

4ossession certificate under (ection 21/ of Indian (uccession Act 1;2G$ !ill not "e necessary for

continuation of proceeding "y his legal ,eirs$ even if legal ,eirs are not "rought on record$ the

execution proceeding !ill not a"ate.

Deli'er% of possession to t*e $ecree*ol$er (it*out notice to +u$,e4ent$e&tor is not

proper:

Application "y judgement%de"tor for re%delivery of the possession on the ground that he had no

notice of the execution proceedings$ dismissed "y the trial court$ ho!ever allo!ed "y the ,igh

11



ourt in revision$ held$ re%delivery of possession to the judgement%de"tor !as not proper$

ho!ever$ compensation of *s$ 2$+++ !as a!arded to the judgement%de"tor.

Execution of $ecree

=otice under 5rder 21 *ule 21 is necessary only !hen the decree holder files an execution of

decree for the first time against the legal representative of the deceased.

RULE 16: En$orse4ent on process :

The officer !ho entrusted !ith the execution of the process$ shall endorse upon the same date

and the manner in !hich it !as executed and also endorsed upon in the reason of delay and in

case the process !as not executed$ !ill also state reasons thereof. ,o!ever a person cannot "e

re% arrested on the ground of a"sence of endorsement.

#or4 an$ contents

An Application for execution must "e in !riting except !hen an oral application is made under

5rder I$ *ule 1101. 6pon an application for execution "eing filed$ the ourt shall scrutini>e

it to see that all the reuirements of 5rder I$ *ules 1102$ 12$ 13$ and 1/ of the ode of ivil

4rocedure$ 1;+F$ have "een duly complied !ith. The application should state distinctly the mode

in !hich the assistance of the ourt is sought and the proceedings should "e confined to that

mode$ unless any amendment has "een allo!ed. 7hen an application is for the attachment of

immova"le property$ special care shall "e taen that the specification and verification reuired "y

5rder I$ *ule 13$ of the ode have "een furnished. The ourt may also reuire the applicant

to produce the authenticated extract mentioned in 5rder I$ *ule$ 1/ !hen the property is land

registered in the ollector s office.‟1+

1 http://m4a.gov.in/#ite/8pload/97/aterial;2on;2<xecution;2o;2=ecrees

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Li4itation

The la! of limitation as regards applications for execution !ill "e found in Article 13- 1 of the

Indian Cimitation Act$ 1;-3. An application for execution must "e filed !ithin three years of the

date of the final decree$ and in the case of su"seuent applications$ !ithin three years of the date

of the final order passed on a previous application made in accordance !ith la! to the proper

ourt for execution.

)y (ection 11 of the 4unja" #e"tors 4rotection Act the period of limitation has "een reduced to

six years in certain cases specified therein and the attention of the ourts is directed to that

(ection.

Restrictions place$ &% Pun;a& Relief of In$e&te$ness Act

The restrictions imposed "y (ection 210" of the 4unja" *elief of Inde"tedness Act$ 1;3/$ on the

po!er of a ivil ourt to execute its decree in certain circumstances should "e carefully noted.

A$4ission an$ furt*er procee$in,

7hen the application for execution is in order$ or has "een amended under 5rder I$ *ule 1

of the ode of ivil 4rocedure$ 1;+F$ and is !ithin time$ the ourt shall proceed as directed in

5rder I$ *ule 10/ and shall cause the application to "e entered in the proper register. A copy

of the decree need not "e filed !hen execution is taen out in the ourt "y !hich the decree !as

passed. If in any case it is not possi"le to verify the correctness of the application from the ourt

register$ the original decree should "e sent for and examined "y the ourt.

A4en$4ent

1



According to *ule 101$ 5rder 21$ if all the reuirements of *ules 11 to 1/ are not complied

!ith$ the ourt shall not reject the application straight%!ay "ut the ourt shall allo! the defect to

"e remedied then and there or !ithin a time to "e fixed "y it.11

If the defect is not so remedied$ the ourt shall reject the application "ut it shall not reject the

application simply if in the opinion of the ourt there is some inaccuracy as to the amount

referred to in clauses 0g and 0h of su"%rule 02 of *ule 11 and shall decide the application

provisionally.

Dut% of Court to ascertain t*e a4ount $ue

7henever$ on an application for the execution of a decree$ or !henever in the course of

execution proceedings$ it is necessary to ascertain the amount of money !hich is or !hich

remains due under the decree$ the judicial officer should from his o!n conclusion on the matter

therefrom. ,e should not relay on mere kaifyats or office notes made "y ministerial officers. 12

Se'eral $ecree*ol$ers

7hen an application is made to judicial officer$ under 5rder I$ *ule 1G$ of the ode of ivil

4rocedure$ for the execution of the !hole decree "y one or more persons not "eing all the

persons !hose favour the decree appears to "e$ he should cause notice thereof to "e given to the‟

remaining decree%holders or their representatives and he ought not to grant the application

unless$ after all these parties have had an opportunity of "eing heard$ he is satisfied that there is

good reason for the application.

7here the decree is severally in favour of more persons that one specifying !hat each is entitled

to there may "e applications for partial execution. )ut !here the decree is jointly in favour of

more persons than one$ the application must "e for the execution of the entire decree$ so far as it

11 #upra note 12.

12 #k. >usu v. 43otish +handra 07 1(2 +al 2!1.

1!



remains unexecuted or unsatisfied8 and if the application is for execution of a fraction or a

proportionate part of the decree only$ it should "e refused. 13

Transferee

7hen an application for the execution of a decree is made$ under the provisions of 5rder I$

*ule 1-$ of the ode of ivil 4rocedure$ "y a person claiming to "e entitled to the "enefit of the

decree in conseuence of a transfer of the same to him from the original decreeholder "y an

assignment in !riting$ the ourt must cause notice of the application to "e given to the

transferor$ and it cannot grant the application unless it is satisfied after the transferor has had an

opportunity of "eing heard that the transfer has in fact "een effected.

In cases in !hich the ourt grants the application$ it should record its reasons for so doing and

mae an order that thence for!ard the name of the applicant shall stand on the record as decree

holder instead of that of the original decree%holder. 0The provisions of this rule do not affect the

representatives and a transferee of rights in the property$ !hich is the su"ject matter of the suit$

may apply for execution of the decree !ithout a separate assignment of the decree.

Notice to ;u$,4ent $e&tor

*en an application is made more than t!o years after the date of decree or against the legal

representatives of a party to the decree$ the ourt must first issue a notice to the person against

!hom execution is applied for reuiring him to sho! cause !hy the decree should not "e

executed against him unless the case falls !ithin the proviso to su"%rule 1 of *ule 22 of 5rder I$ or the ourt dispenses !ith the notice under su"%rule 02 of the same *ule in !hich later

case the failure to record any reasons is no! deemed to "e only an irregularity not amounting to

a defect in jurisdiction 0vide the *ule as amended "y the 4unja" ,igh ourt.

1 7am ,rasad v. &akshi &indeshwari ,rasad 07 1(2 pat 1!".

1"



Attention to ser'ice of process

Attention is invited to the provisions of 5rder I$ *ules 2/ and 2G$ regarding processes for

execution. *ule 2/ reuires that in every case a day specified on or "efore !hich the process is to

"e executed. *ule 2G maes it incum"ent on the ourt to examine the officer executed$ !ith the

execution$ !hen the process is not duly executed$ to satisfy itself as records the reasons for its

non%execution and to record the result of its inuiry. If the ourts mae careful inuiry in such

cases and do not "lindly accept the reports on the processes$ the percentage or infructuous

applications !ill apprecia"ly diminish. 1/

A$$ress for ser'ice

It should "e noted that according to order I$ *ule 1+/$ ivil 4rocedure ode$ as framed "y

the Cahore ,igh ourt$ service on any party shall "e deemed to "e sufficient in execution

proceedings if it is effected at the address for service referred to in 5rder III$ *ule 11$ ivil

4rocedure ode$ su"ject to the provisions of 5rder II$ *ule 2/$ ivil 4rocedure ode. This

rule$ ho!ever$ does not apply to notices prescri"ed "y 5rder I$ *ule 22$ ivil 4rocedure

ode$ to sho! cause against execution in certain cases.

Perio$ of pen$enc%

Execution 4roceedings$ !ill for statistical purposes$ "e considered as only pending for the period

during !hich something is "eing done to!ards execution. If the decree%holder has reali>ed his

instalment$ or o"tained the satisfaction ased for in the application for execution$ the case should

"e struc off$ even though a portion of the decree still remains unexecuted. (imilarly$ the case

should "e dismissed if the applicant for execution does not tae necessary steps to prosecute his

application. The ourt should record its reasons for the action taen in such cases.

Attac*4ent of 4onies $ue to +u$,4ent $e&tors

1! 0mul3a nath v. pashupati nath? 07 1("1 +al !).

16



A case in !hich the 9udgment%de"tor prays for a prohi"itory order for the attachment of monies

due to the judgment%de"tor 0!hether as his salary or other!ise should "e dismissed as soon as

the prohi"itory order has "een duly served and the file should "e sent to the ivil =a>ir.

The su"seuent realisation of the moneys concerned forms part of the ministerial duties of the

ivil =a>ir. If for any reason$ such realisation is not promptly and satisfactorily effected$ the

judgment%creditor can as the ourt to tae necessary action.

MODES O# E"ECUTION8

The code lays do!n various mode of execution. After the decree%holder files an application for

execution of decree$ the executing court can enforce execution.

A decree may "e enforced "y delivery of any property specified in the decree$ "y attachment and

sale or "y sale !ithout attachment of the property$ or "y arrest and detention$ or "y appointing a

receiver$ or "y effecting partition$ or any such manner !hich the nature of relief reuires.

The code allo!s more than one mode of execution of decrees. As a general rule$ a decree holder

has an option to choose a particular mode for executing and enforcing a decree passes "y a

competent authority in his favour .1Git is for him to decide in !hich mode he !ill execute his

decree. This po!er$ ho!ever is &su"ject to the discretion of the court'1- as !ell as to the

&conditions and limitations prescri"ed "y "y the code'

SIMULTANEOUS E"ECUTION

(ection G1 of the code is very !ide and permits execution of decrees "y different modes. As a

general rule$ a court passing the decree should not ordinarily place any limitation as to the mode

in !hich it is to "e executed.

1" ahadeo ,rasad singh v. ram lochan '1()* #++ "!.

16 @rder 21 rule 21.

1



In Pa$rauna ra;a)ris*na su,ar (or)s lt$8 <8 lan$ refor4s co44r.1$ income tax dues !ere

sought to "e reali>ed as arrears of land revenue "y selling immova"le property of the company. It

!as contended "y the company that the collector at the first instance ought to have sold

mova"les. =egativing the contention and upholding the action of the collector ( stated =co$e

of ci'il proce$ure i4poses no o&li,ation to reco'er t*e $ues &% sale of 4o'a&les or &% arrest

an$ $etention of t*e $efaulter &efore i44o'a&le propert% 4a% &e attatc*e$8>

In S*%a4 sin,* '8 collector? Dist? !a4irpur7@ for recovery of certain de"ts$ simultaneous

proceedings for attatchment and sale of mova"le as !ell as immova"le property !ere taen. It

!as upholded "y the supreme court.

It is ho!ever$ necessary to note that discretion is !ith the court to order simultaneous execution

and that discretion must "e exercised judicially.

78 ARREST AND DETENTION

5ne of the modes of executing a decree is arrest and detention of the judgement%de"tor in civil

imprisonment. 7here the decree is for payment of money$ it can "e executed "y arrest and

detention of the judgement%de"tor.

References

The la! regarding arrest and imprisonment is contained in (ection G1$ GG to G;$ 13G$ 13G%A and

13-$ 5rder I$ *ules 21$ 3 to /+$ 5rder 3F$ *ules 1 to / of the ivil 4rocedure ode and the

4unja" *elief of Inde"tedness Act$ (ection 3/.

Persons exe4pte$ fro4 arrest

A !oman is exempt from arrest or detention in execution of a decree for money. 0(ection G- of the ode. Dor other persons exempt from arrest under ivil 4rocedure ode see (ections 13G

and 13G%A of the ode. Dor exemption on the grounds of illness see (ection G;.

1 '1(6(* 1 #++ !)".

1) 1(( #upp '1* #++ 6(.

1)



Present La( of arrest

In vie! of the amendments made in 5rder I$ *ule 3 of the ode "y Act I of 1;3- the

ourt shall issue a notice to the judgment de"tor "efore issuing a !arrant of his arrest in

execution of the decree unless the ourt is satisfied$ "y affidavit or other!ise$ that the judgment%

de"tor is liely to a"scond or leave the limits of the jurisdiction of the ourt !ith the o"ject or

effect of delaying the execution of the decree. 6nder (ection 3/$ of the 4unja" *elief of

Inde"tedness Act as su"stituted "y 4unja" Act II of 1;/+$ no de"tor as defined in that Act shall

"e arrested or imprisoned in execution of a decree from money.

+u$,4ent$e&tor s*oul$ &e as)e$ (*et*er *e (ants to &e $eclare$ insol'ent

A judgment%de"tor against !hom no act of "ad faith is proved can o"tain his discharge as an

insolvent under Act of 1;2+8 !henever a judgment%de"tor is to "e committed to jail$ he should

"e informed that he may apply to "e declared insolvent (ection GG03 of the ode<.

Expenses of arrest an$ i4prison4ent

A judgment%de"tor cannot "e arrested in execution of a decree unless and until the decree%holder

has paid into ourt such sum as the 9udge thins sufficient for the su"sistence of the judgment%

de"tor from the time of his arrest until he can "e "rought "efore the ourt. 7hen the judgment%

de"tor is committed to the ivil prison$ the ourt must fix such monthly allo!ance for the

su"sistence of the judgment%de"tor as it thins fit. The first payment shall "e made "y the decree%

holder to the proper officer of the ourt for such portion of the current month as remains

unexpired at the time. All su"seuent payments must "e made to the officer%in%charge of ivil

prison in advance "efore the first day of each month 05rder I$ *ule 3;$ ivil 4rocedure

ode.

(ums dis"ursed "y the decree%holder for the su"sistence of the judgment shall "e deemed to "e

costs in the suit (Vide 5rder I$ *ule 3;0G$ ivil 4rocedure ode as amended "y the 4unja"

,igh ourt. 1;

1( #upra note 2.

1(



Arrest $urin, 'acation

7arrants of arrest should "e held in suspense during the (eptem"er acation.

A judgement%de"tor may "e arrested at any time on any day in execution of a decree. After this

arrest$ he must "e "rought "efore the court as soon as practica"le. Dor the purpose of maing

arrest$ no d!elling house may "e entered after sunset or "efore sunrise. Durther$ no outer door of

a d!elling house may "e "roen open unless such d!elling house is in the occupancy of the

judgement%de"tor and he refuses or prevent access thereto.

=o order of detention of the judgement%de"tor shall "e made !here the decretal amount does not

exceed *s.2+++.7here the judgement%de"tor pays the decretal amount and costs of arrest to the

officer$ he should "e released once. A !omen$ judicial officers$ the parties$ their pleaders$

mem"er of legislative "odies$ a judgement%de"tor !here the decretal amount does not exceed *s

2$+++$ these person cannot "e arrested and detained in civil imprisonment.A decree for money

cannot "e executed "y arrest and detention !here the judgement%de"tor is a !oman$ or a minor$

or a legal representative of a deceased judgement%de"tor.

This order should not "e ordered unless$ after giving the judgement J de"tor an opportunity of

sho!ing cause !hy he should not "e so detained $ the court for reasons to "e recorded in !riting

is satisfied

01 That the judgment de"tor !ith the o"ject of o"structing or delaying the execution of the

decree0a Is liely to a"scond or leave the local limits of jurisdiction of the court

0" 5r has$ after the institution of the suit in !hich the decree !as passed $ dishonestly

transferred$ concealed or removed any part of his property$ or committed any other

act of "ad faith in relation to his property

02 5r$ he has or has had since the date of the decree$ the means to pay the amount of decreeor some su"stantial part thereof and refuses or neglects or has refused or neglected to pay

the same

03 5r$that the decree is for the sum !hich the judgement de"tor !as "ound in a fiduciary

capacity to account for.

2



T*e o&;ect of $etention

It is t!o%fold. 5n one hand$ it ena"les the decree holder to realise the fruits of the decree passed

in his favour$ !hile on the other hand$ it protects the judgment de"tor !ho is not in a position to

pay the dues for reasons "eyond his control or is una"le to pay. Therefore$ mere failure to pay the

amount does not justify arrest and detention of the judgment de"tor in as much as he can not "e

held to have neglected to pay the amount to the decree holder.

18 ATTAC!EMENT O# PROPERT1B

Attac*4ent of stan$in, crops? trees an$ salar%

The la! as to attachment is contained in (ections -+%-/ and 5rder I$ *ules /1%G$ ivil

4rocedure ode and (ection 1/1$ 4unja" Cand *evenue Act$ 1FF.

The changes made in *ules /3$ /3A$ /3)$ /3$ /3#$ /G$ G3 and G/ of 5rder I "y the 4unja"

,igh ourt 0vide hapter 21 should "e noted as also the fact that in the 4unja" standing crops$

excepting cotton and sugar%cane$ are not no! lia"le to attachment or sale in execution of a decree

vide (ection 1+01 of 4unja" #e"tor s 4rotection Act<. (tanding trees apart from land on !hich‟

they stand$ are also exempt from sale vide (ection 1+02 of the 4unja" #e"tor s 4rotection Act<.‟

Attention is dra!n to the amendment of (ection -+ of the ode of ivil 4rocedure "y Act =o. --

of 1;G- and 1+/ of 1;-. =o! in execution of decrees for maintenance only one%third of the

salary !ould "e exempt from attachment irrespective of the amount of the salary. In execution of

decrees other than decrees for maintenance salary to the extent of first hundred rupees and

onehalf of the remainder shall "e exempt from attachment. (ervants of the Bovernment or

rail!ay ompany or local authority are given further protection as regards the periods for !hich

their salary can "e attached in execution of decrees other than decrees for maintenance.

Mo$e of attac*4ent of i44o'a&le propert%

2 http://www.lawctopus.com/academike/concept-execution/

21



The mode of attaching immova"le property is "y issuing a prohi"itory order to the judgment

de"tor and to the pu"lic generally. 10It shall reuire the judgment de"tor to attend ourt on a

specified date to tae notice of the date so fixed for settling the terms of the proclamation of

sale. 0The order shall also tae effect$ as against of person claiming under a gratutious transfer

from the judgment%de"tor$ from the date of attachment$ as against others from the date they had

no!ledge of the passing of the order of attachment or from the date of proclamation$ !hichever

is earlier 05rder I$ *ule G/1$ !hen the property is land paying revenue to the Bovernment$

three copies of the prohi"itory order shall "e prepared. In the case of other immova"le property$

only t!o copies are necessary. The details given in the schedule annexed to the order shall "e

identical !ith those given in the schedule of the property given in the !arrant strict compliance

!ith the provisions of la! is necessary to mae the attachment valid. 21

The !arrant$ together !ith the reuisite copies of the prohi"itory$ order shall "e delivered to the

=a>ir !ho !ill himself$ or through his su"ordinates$ fix up the copies and proclaim the order$ in

accordance !ith the directions given in the !arrant. The =a>ir !ill personally mae upon the

!arrant the endorsement reuired "y la!$ and return it duly endorsed !ithin the specified time to

the ourt. Any person deputed "y the =a>ir$ !ho performs any of the acts constituting the

attachment$ shall su"mit a separate return starting the manner in !hich$ and the day and hour at

!hich$ he did such act. This return !ill "e attached "y the =a>ir to the !arrant. 07here the

property is land situated in a cantonment$ copies of the order shall also "e for!arded to the

antonment )oard and to the Kilitary Estates officer in !hose are that cantonment is situated.

Attention to co4pliance (it* le,al for4alities

The attention of all ivil ourts is dra!n to the necessity of maing it a point to scrutini>e the

service of !arrants of attachment "efore they tae further action !ith regard to the sale or

temporary alienation of the property attached. The attachment of land and houses reuires

particular care and the ourt should thoroughly satisfy itself that all the formalities necessary for

a legal attachment$ have "een complied !ith. Dailure to comply !ith these legal formalities may

constitute material irregularity$ !ithin the meaning of 5rder I$ *ule ;+ ode of ivil

21 Aakwani? +.B.? C+ivil ,rocedure with imitation 0ct?1(6.Dth <dition.<atern Eook

+ompn3. ,g. 616..

22



4rocedure$ and may cause very serious trou"le and loss to the parties later on. It should "e noted

that a copy of the attachment order is first to "e affixed on the property and then upon the ourt

house. All ourts !ill$ therefore$ reuire the *eader to record a note on the !arrant of

attachment or on file$ that the specific formalities reuired "y Ca! in the case$ have "een actually

complied !ith. The 4residing 5fficer !ill carefully scrutini>e such note and initial it in toen of

its correctness.

arrant of attac*4ent of lan$8 Dru4 &eatin, c*ar,es11

7here the order is for the attachment of land$ the !arrant should$ in accordance !ith the

provisions of (ection 1/1 of the 4unja" Cand *evenue Act$ II of 1FF$ "e addressed to the

ollector$ and "e sent to him for execution$ along !ith the necessary copies of the prohi"itory

order. The ollector and his office !ill then "e responsi"le for executing it in accordance !ith

the specified legal formalities$ and to affix the necessary prohi"itory orders$ first on the property

and then on the ourt house of the 9udge issuing the attachment and in his o!n office. The

ollector !ill return the !arrant to the ourt concerned !hen it has "een duly executed$ !ith an

endorsement under his signature certifying that all the legal formalities reuired have actually

"een complied !ith$ and the ourt !ill thereafter proceed as directed in paragraph / a"ove.

4ayment of drum%"eating charges may "e allo!ed to "e made at the discretion of the #istrict

9udge either:

0a in cash at the spot$ or

0" "y postal stamps attached to the !arrant$ or

0c "y Indian 4ostal 5rders.

Effect of $is4issal of execution position

22 Fals&ur35s aws o <ngland '!thedn.*ol. 1 at p.22G +oncise @xord <nglish

=ictionar3 '22* at p.!(.

2



7here the ourt for any reason$ passes any order dismissing the application for execution of the

decree$ the ourt shall direct !hether the attachment shall continue or cease and shall also

indicate the period up to !hich such attachment shall continue or the date on !hich such

attachment shall cease 05rder 21$ *ule G.

Deter4ination of Attac*4ent.

The attachment automatically ceases !here the ourt for any reason has dismissed the

application for execution of the decree 0and has omitted to give and discretion to that effect.

Re4o'al of attac*4ent after satisfaction of t*e $ecree1.

In the follo!ing circumstances$ the attachment may "e terminated:

01 7hen all the costs and charges of the decretal amount are paid into the ourt.

02 (atisfaction of the decree is other!ise made through the ourt or certified to the ourt.

03 The decree is set aside.

0/ 5n furnishing the reuired security "y the 9.#.

0G )y compromise "et!een the parties.

0- )y an express order !ithdra!ing or putting an end to the attachment.

0 )y sale of the attached property in execution of the decree.

0F )y a"andonment of the attachment "y the decree%holder.

2 Fals&ur35s aws o <ngland '!thedn.*ol. 1 at p.22G +oncise @xord <nglish

=ictionar3 '22* at p.!(.

2!



Notification19

The entral Bovernment has issued the follo!ing notification under (ection -+010C of the

ivil 4rocedure ode:

The 2nd October, 1940

=o. 1F-L3. In pursuance of lause 0C of the proviso to su"%section 01 of (ection -+ of the

ode of ivil 4rocedure 1;+F 0Act of 1;+F$ the entral Bovernment is pleased to declare that

the follo!ing allo!ance paya"le to any pu"lic officer in the service of the said Bovernment$ or

any servant of a Dederal *ail!ay or of a antonment authority or of the port authority of a major

port$ shall "e exempt from attachment "y order of a ourt$ namely:

01 All inds of travelling allo!ances.

02 All inds of conveyance allo!ances.

03 All allo!ances granted for meeting the cost of:

0a 6niforms8 and

0" *ations.

0/ All allo!ances granted as compensation for higher cost of living in localities considered "y

Bovernment to "e expensive localities including hill stations.

0G All house rent allo!ances.

20- All allo!ances granted to provide relief against the increased cost of living.

30 A foreign allo!ance or$ in the case of heads of #iplomatic missions$ frais de representation$

assigned to officer serving in posts a"road.

2!#upra note 21.

2"



T*e Pun;a& Go'ern4ent *as issue$ t*e follo(in, notification un$er clause 072 of t*e

pro'iso to su&section 072 of Section B of t*e Co$e of Ci'il Proce$ure:

+u$icial 0The 1th !anuary, 194" 2

=o. F2;F%9%/2L/F;@In exercise of the po!ers conferred "y clause 0I of the proviso to

su"section 01 of (ection -+ of the ode of ivil 4rocedure$ 1;+F 0Act of 1;+F$ the Bovernor

of the 4unja" is pleased to declare that the &dearness allo!ance' paya"le to any pu"lic officer

serving the Bovernment in connection !ith the affairs of the (tate shall "e exempt from

attachment in execution of a decree.

Officer to (*o4 notices of attac*4ent of salar% etc8 4a% &e ,i'en un$er

Or$er ""I? Rule 9@

In pursuance of su"%rule 01 of *ule /F of 5rder I of the Dirst (chedule to the ode of ivil

4rocedure$ 1;+F 0 of 1;+F$ the entral Bovernment here"y appoints the officers specified in

column 1 of the ta"le "elo! as officers to !hom notices of orders attaching the salaries and

allo!ances of the officers specified in the corresponding entries in column 2 of the said ta"le

shall "e sent.

26



Ofcers to whom

Notice should be sent

Ofcers whose salaries and

Allowances are attached

+ontroller o =eence

0ccounts? Hestern

+ommand? eerut

'!* @rganiation o the +ontrollero

=eence 0ccounts? Hestern

+ommand? eerut

9aetted and Ion-9aetted

@Jcers

+ontroller o =eence

0ccounts? #outhern

+ommand? ,oona

'"* @rganiation o +ontroller o

=eence 0ccounts? #outhern

+ommand? ,oona


@Jcers

%oint +ontroller o

=eence 0ccounts?

,atna

'6* @rganiation o the %oint

+ontroller o =eence

0ccounts? ,atna

2

Ofcers to whom




0ccountant-9eneral?

+entral 7evenues? Iew

=elhi

'1*inistr3 o Kinance '=eence*?

9aetted @Jcers

0ssistant Kinancial

0dviser?

'<sta&lishment*?

inistr3 o

Kinance '=eence*?

Iew

=elhi

Ion-9aetted @Jcers

+ontroller 9eneral o

=eence 0ccounts?

Iew

=elhi

'2* @Jce o the +ontroller

9eneral o

=eence 0ccounts? Iew =elhi


@Jcers

+ontroller o =eence

0ccounts? <astern

+ommand? eerut

'* @rganiation o the +ontroller

o

=eence 0ccounts? <astern

+ommand? eerut


@Jcers



9aetted or Ion-9aetted

@Jcers

+ontroller o =eence

0ccounts? 'other

ranks*?

#ecundera&ad

'* @rganiation o the +ontroller

o

=eence 0ccounts 'other

ranks*? #ecundera&ad


@Jcers

+ontroller o =eence

0ccounts '@Jcers*?

,oona

')* @rganiation o the +ontroller

o

=eence 0ccounts '@Jcers*?

,oona

9aetted or Ion-9aetted@Jcers

+ontroller o =eence

0ccounts ',ensions*?

0llaha&ad

'(* @rganiation o the +ontroller

o

=eence 0ccounts ',ensions*?

0llaha&ad


@Jcers

2)



+ontroller o =eence

0ccounts 'Kactories*?

+alcutta

'1

*

@rganiation o the +ontroller

o

=eence 0ccounts 'Kactories*?

+alcutta*


@Jcers

+ontroller o =eence

0ccounts '0ir Korce*?

=ehra =un

'11

*


o

=eence 0ccounts '0ir Korce*?

=ehra =un


@Jcers

Ofcers to whom




+ontroller o =eence

0ccounts

'Iav3*? Eom&a3

'12

*


o

=eence 0ccounts 'Iav3*?

Eom&a3


@Jcers

2(



0Go'ern4ent of In$ia? Ministr% of #inance 0Defence2? Notification No8 S8R8O8 797? $ate$

t*e 76t* +une? 7/682 16

O+ECTIONS TO ATTAC!MENT

#ull InFuir%

5"jection to attachment of property under 5rder I$ *ule GF$ are freuency responsi"le for

great delay in the disposal of the execution cases. (uch o"jections are at time collusive and

should "e scrutinised !ith care and disposed of promptly. Adjudication of such o"jections or

claims should "e confined to the points indicated in *ules GF and G; of 5rder I. Adjudication

of any claim or o"jection is appeala"le lie a decree. 7hen the ourt dismiss any claim or

o"jection under 5rder 21 *ule GF01$ the party may file an application under (ection 1G1 4

for restoration and for re%investigation or he may also file a suit under 5rder 21 *ule GF0G

!ithin one year from the date of dismissal for default2-.

Po(er to $is4iss o&;ection out trial

It should "e noted if an o"jection appears to have "een ?designedly or unnecessarily delayed 0or ‟

!here$ "efore the claim is preferred or o"jection is made$ the property attached has already "een

sold$ the ourt as po!er to refuse 0adjudicate the claim and dismiss the petition and leave the

petitioner to institute a suit under su"%rule 0G of *ule GF$ 5rder 2F 4 for the purpose.

The amendment of *ule GF of 5rder 21$ 4 "y 4unja" and ,aryana$ #elhi and ,imachal

4radesh ,igh ourt further provides that unless an o"jection is made !ithin a reasona"le time of

first attachment a further right to the attachment and sale of the same property can "e allo!edonly if a title acuired su"seuent to the date of the first attachment is esta"lished.

2" https://www.nls.ac.in/li&/&areacts/civil/cpc/cpco21.html

26 https://www.nls.ac.in/li&/&areacts/civil/cpc/cpco21.html



A decree may also "e executed on the application of the decree%holder "y attachment and sale

only sale !ithout attachment of property. The code recogni>es the right of the decree%holder to

attach the property of the judgement de"tor in execution proceeding and lays do!n the procedure

to effect attachment8 Sections B to 9 an$ rules 97 to 6 of Or$er 17 deals !ith the su"ject of

attachment of property. The code enumerates properties !hich are lia"le to "e attached and sold

in execution of a decree. It also specifies properties !hich are not lia"le to "e attached or sold. It

also prescri"es the procedure !here the same property is attached in execution of decrees "y

more than one court. The code also declares that a private alienation of property after attachment

is void.

Section B072 declares !hat properties are lia"le to attachment and sale in execution of a decree$

and !hat properties are exempt therefrom. All salea"le property0 mova"le or immova"le "elonging to the judgement%de"tor or over !hich or the portion of !hich he has a disposing

po!er !hich he may exercise for his o!n "enefit may "e attached and sold in execution of a

decree against him.

Section 7 deals !here the judgement%de"tor is agriculturalist. It state that judgement%de"tor is

agriculturalist. Any agriculturalist produce is su"ject matter of agriculturalist. The uantum of

attachment of agricultural product depends upon the uantum of decretal amount.

Section . !here t!o different courts have attached the same property through different decree$

then it !ill "e looed$ that !hich court is superior. The value of the property !ill determine

!hether further attachment can "e done or not.

PERCEPT

Section 9% &precept' means a command$ an order$ a !rit or a !arrant. A percept is an order or

direction given "y court !hich passed the decree to a court !hich !ould "e competent to execute

the decree to attach any property "elonging to the judgement%de"tor.(ection /- provides that

court !hich passed a decree may$ upon an application "y the decree%holder$ issue a percept to

that court !ithin !hose jurisdiction the property of the judgement%de"tor is lying to attach any

property specified in the percept.

1



A percept sees to prevent alienation of property of the judgement%de"tor not located !ithin the

jurisdiction of the court !hich passed the decree so that interest of the decree%holder is

safeguarded and protected.

It is interim attachment of the property !hich lies outside the jurisdiction of court !hich has

passed the order. To protect the interest of the decree holder on his application !ill issue percept

to the court in !hose jurisdiction property is situated to attach the property of the judgement%

de"tor. The interim order for attachment is valid for the period of only 2 months.

GARNIS!EE ORDER

It is the proceeding "y !hich the decree%holder sees to reach money or property of the

judgement%de"tor in the hands of a third party 0de"tor of judgement%de"tor.

(uppose A o!es *s 1+++ to ) and ) o!es *s 1+++ to c. )y a garnishee order$ the court may

reuire A not to pay money o!ed "y him to )$ "ut instead to pay $ since ) o!es the said

amount to $ !ho has o"tained the order.

&Barnishee order' is an order passed "y a court ordering a garnishee not to pay money to the

judgement%de"tor "ecause the latter is inde"ted to the garnisher.

.8 DELI<ER O# PROPERT8

The steps to "e taen$ under 5rder I$ *ules 3G and 3- of the ode of ivil 4rocedure$ 1;+F$

in the case of the delivery of immova"le property are as follo!s:

*en t*e propert% is in possession of a person (*o is &oun$ &% t*e $ecree or

(*o *ol$ possession on &e*alf of one (*o is so &oun$

Dirst$ !here a decree is for delivery of immova"le property if such property is in the possession

of any person "ound "y the decree$ such person may "e called upon to vacate the property in

order that possession may "e delivered to the person to !hom it has "een adjudged or his agent8

and if he refuses to do so he may "e removed from the property in order to effect such delivery

2



possession. ,ere the endorsement on the !arrant should state that the property !as found in the

possession of A 0naming the person and that he !as one of the persons "ound "y the decree held

on "ehalf of one of the persons 0naming the persons8 that he !as reuired to vacate the property$

and that$ on his doing so$ the person entitled under the decree !as put in possession$ or that$ on

his refuse to do so$ he !as removed from the property$ and the person entitled under the decree

!as put in possession.

Decree for ;oint possession

(econdly$ !here a decree is for joint possession of immova"le property$ such possession shall "e

delivered "y affixing a copy of the !arrant in some conspicuous place on the property and

proclaiming "y "eat of drum at some convenient place the su"stance of the decree. ,ere the

endorsement on the !arrant should state on !hat part of the property the copy of the process !as

affixed and at !hat place the su"stance of decree !as proclaimed.

O&tainin, access to $eli'er possession

Thirdly$ !here possession of any "uilding or enclosure is to "e delivered and the person in

possession$ "eing "ound "y the decree$ does not afford free access$ the officers of the ourt may

0after giving reasona"le !arning and facility to any !oman not appearing in pu"lic according tocustom$ to !ithdra! remove or open any loo or "olt or "rea open any door or do any other act

necessary for putting the decree%holder in possession.2

,ere the endorsement should descri"e "riefly the action taen$ as in paragraph 0a a"ove.

*en propert% is in possession of a person (*o is not &oun$ &% $ecree

Dourthly$ if the property is in the occupancy of a tenant or other person entitled to occupy it and

not "ound "y the decree to relinuish such occupancy$ a copy of the !arrant must "e affixed in

some conspicuous place on the property$ and proclamation made as provided in 5rder I$ *ule

3-$ of the ode. ,ere the endorsement should state that a copy of the !arrant had "een put up

0starting !here it !as affixed$ and that the su"stance of the decree had "een proclaimed.

2Ehagwati &ai v. ,adma &ai 07 1("" 04m ").



)efore issuing a !arrant for the delivery of immova"le property$ the ourt should ascertain from

the decree%holder$ or his agent$ the name of the person !hom he "elieves to "e in possession of

such property$ to guide it in selecting the particular mode of delivery suita"le to the case.

7hen a decree is passed giving possession of agricultural land$ the date on !hich possession is

to "e delivered should al!ays "e specified in the decree$ and orders passed as to any standing

crops that may "e on the land. If this has not "een done in the decree$ it should "e done in the

order !hich is sent to the ollector "y the ourt executing the decree. If ho!ever$ no date is

specified in either the decree or the order$ and the land of !hich possession is to "e delivered is

in the cultivating possession of the judgment%de"tor$ the ollector should at once refer to the

ivil ourt for instructions as to !hether or not he is to delay execution of the decree$ until any

crop !hich may have "een so!n "y the judgment%de"tor and is standing on the land$ has "eenremoved.

Co44ents

Dor executing orders a"out possession of agricultural land$ decree is sent to ollector. ivil

ourt must mae mention a"out standing crops and specify period !hen possession is to "e

given. If it is silent$ then ollector should return decree to ivil ourt for doing the needful.

Arya Dutt '8 State, 07/92 6 PLR 196 0Del*i28

0A2 Deli'er% of 4o'a&le propert% section 670a2? rule .7H

7here the decree is for a specific mova"le property$ it may "e executed

01 )y sei>ure and delivery of property or

02 )y detention of the judgment de"tor or

03 )y attatchment and sale of his property or 0/ )y attachment and detention "oth.

The Mspecific mova"le propertyN does not include money and therefore$ a decree for money can

not "e executed under rule 31. Again$ for the application of this rule the property must "e in the

!



possession of the judgment de"tor. 7here the property is in the possession of a third party$ the

provisions of this rule do not apply and property can not "e attatched.2F

02Deli'er% of i44o'a&le propert% Rules .6.H

*ules 3G%3- correspond to rules ;G and ;- !hich lay do!n the procedure for delivery of

possession to auction purchaser !ho has purchased the property in an auction sale.

ItG can "e executed "y removing the judgment de"tor or any person "ound "y the decree and "y

delivering possession thereof to the decree holder. If the decree holder satisfactorily esta"lishes

identity of decretal property$ the decree must "e executed "y the court "y putting the decree

holder in possession thereof. (uch possession delivered in this manner is no!n as =!AS or

ACTUAL> possession. )ut if such property is in the possession of the tenant or other person

entitled to occupy the same and not "ound "y the decree$ the delivery of the property is made "y

affixing a copy of !arrant at some conspicuous place on the property and proclaiming to the

occupant "y "eat of drum or other customary mode. This is no!n as =s%4&olic or for4al

possession>J

Pro'ision relatin, to par$anas*in la$ies

7here the person in possession and "ound "y the decree does not afford free access$ the officers

of the court may$ after giving reasona"le !arning and facility to a pardanashin lady to !ithdra!$

"rea open into the "uilding and put the decree holder in possession thereof.

=An% person &oun$ &% t*e $ecree>

2) Iawa& &ahadur v. karnani industrial &ank ltd. '1(* ") 0 21".

"



The expression &any person "ound "y the decree' includes the judgment de"tor as !ell as any

other person "ound "y such decree2;. A su"% tenant is "ound "y a decree of ejectment passed

against the tenant. (imilarly$ a decree passed against a "enamidar "inds the real o!ner.

A(ar$in, 4esne profits

The executing court can also a!ard mesne profits as an integral po!er to order delivery of

possession and conseuential to unla!ful retention of possession of property.

98 SALE O# T!E PROPERT

A decree may "e executed "y attachment and sale or sale !ithout attachment of any property.

(ection -G to 3 and rules -/ to ;/ of 5rder 21 deals !ith the su"ject relating to sale of mova"le

and immova"le property.

Po(er of court: Rule 96

*ule -/: a court may sell the property$ !hich he has taen into custody under an attachment

under order -+.

*ule -G: appointment of officer "y the court !ho !ill "e charged to sell the property. 5fficer !ill

"e the representative of the court and !ill sell the property for execution of decree.

Procla4ation of sale: Rule

It is a ind of order or declaration. It operates as a pu"lic notice regarding the sale. ItNs says that

people can participate in auction and sale. 4roclamation can "e in !riting or "y customary mode.

Contents of procla4ation:

1. Time and place of sale

2. 4roperty to "e sold

2( ,atel naran&hai v. dhula&hai? '1((2* ! #++ 26!.

6



3. *evenue$ if any$ assessed upon the property8

/. Encum"rance$ if any$ to !hich property is lia"le8

G. Amount to "e recovered8

-. #etails relating to property$ such as title deed$ length etc.

Ti4e of sale: Rule @

=o sale !ithout the consent in !riting of the judgement%de"tor can tae place "efore fifteen days

in case of immova"le property and "efore days in case of mova"le property from the date of

proclamation in the courthouse. A sell can "e conducted immediately if the property is of

perisha"le nature.

A$;ourn4ent of sale: rule /

If the judgement%de"tor after the issue of proclamation and "efore sell has paid the amount$ or

has partly promised to pay on the given date "efore completion of pu"lic order$ if there is any

justified reason$ in those circumstances$ court has discretionary po!er to postponed the sell. If it

has "een postponed for period of 3+ days$ fresh proclamation has to "e issued and again the

process of rule -$ -F and -; !ill follo!.

(ell cannot "e postponed !here judgement%de"tor dies "efore the date of sell or after the issue of

proclamation$ or on the date of auction.

Restriction to &i$: Rule 1..B

A decree%holder cannot$ !ithout the express permission of the court$ purchase the property sold

in execution of his o!n decree.

Fals&ur35s aws o <ngland '!thedn.*ol. 1 at p.22G +oncise @xord <nglish =ictionar3'22* at p.!(.



A mortgagee of immova"le property cannot$ !ithout the leave of the court$ purchase the property

sold in execution of decree on the mortgage.

Any officer or other person having any duty to perform in connection !ith the execution sale

cannot either directly or indirectly$ acuire or any attempt to acuire any interest in the property

sold in execution.

*ule F%F tals a"out sale of mova"le property. *ules / and G relates to the sale of

agricultural produce and gro!ing crops. *ule - covers negotia"le instruments and shares. (ale

of mova"le property should "e held "y pu"lic auction. A sale of mova"le property !ill not "e

said aside on the ground of irregularity in pu"lishing or conducting the sale 0rule F.

*ule F2%;/ tals a"out sale of immova"le property. *ule F3 ena"les the executing court to

postpone sale to ena"le the judgement%de"tor to raise decretal dues "y private alienation.

*ule F/%FG provide for payment of purchase money "y auction%purchaser. *ule F- tals a"out

cases of default "y auction%purchaser in maing reuisite payment and resale of property. *ule

F;%;1 and ;3 deals !ith setting aside sale and effect thereof. *ules ;2%;/ provide confirmation

of sale and issuance of sale% certificate. (ection -G declares the effect of sale.

CUSTOD AND DISPOSAL O# MO<ALE PROPERT

PENDING SALE

References

*ules relating to the custody and disposal of mova"le property 0other than agricultural produce

attached pending sale$ are contained in *ule /3 to /30# of 5rder I of the Dirst (chedule to

the ode of ivil 4rocedure 0Act of 1;+F as modified or added "y the ,igh ourt. These

have "een reproduced in hapter 21$ of this volume.

)



+e(els an$ porta&le propert% to &e &rou,*t to Court.7

Cight and readily porta"le articles of all inds$ and especially valua"le property of small "ul$

such as je!els$ etc.$ shall after sei>ures$ "e taen to the headuarters of the ourt executing the

decree and "e made over there to the custody of such officer as the ourt may direct.

4roperty of the nature descri"ed in this rule !hen placed in the custody of the =a>ir may "e

placed "y him in his cash chest and lodged in the outer room of Treasury$ if it is open$ as

provided in 5rder /02 of the 4unja" Treasury Kanual$ if it is closed$ the 4residing 5fficer of the

ourt must mae other suita"le arrangements for its safe custody.

78 ul)% propert% an$ li'estoc) @Civestoc and other property !hich is "uly not readily

porta"le should "e dealt !ithin accordance !ith the second proviso to *ule /3.

18 #or4 of sc*e$ule of propert% @The schedule of property to "e annexed to the "ond !hich a

custodian must furnish under the a"ove%mentioned *ule must "e in the follo!ing form:

.8 Sc*e$ule of propert% attac*e$

(chedule of property attached and made over

to OOOOOO..OOOOOOOOO..$ son of OOOOOOOOOOOOOO.....

ofOOOOOOOOOOOOOOO$ as custodian on the OOOOOOOOOO..

OOOOOof OOOOOOOOOO..OOOOO1;OOOOOOOOOO..OO...

#etail of property Estimated value

Total . OOOOOOOOOO....

(dL%OOOOOOOOOO.... (dL%OOOOOOOOOO..O...

7itness ustodian

1 http://m4a.gov.in/#ite/8pload/97/aterial;2on;2<xecution;2o;2=ecrees

pd

(



(dL%OOOOOOOOOO.... (dL%OOOOOOOOOO..O...

7itness OOOOOOOOO Attaching 5fficer

(dL%OOOOOOOOOO..O...

9udgment de"tor

Directions in re#ard to attached $ro$erty

0To "e printed on the reverse of the Dorm

I. =o person can "e compelled "y the ourt or attaching 5fficer thereof to tae charge of attached

property as a custodian.

II. A custodian may at any time terminate his responsi"ilities "y giving notice to the ourt of his

desire to "e relieved of his trust$ and delivering to the proper officer of the ourt the property

made over to him.

III. 7hen any property is taen "ac from a custodian he should "e granted a receipt for the same.

I. 7hen property is made over to a custodian a schedule of property should "e dra!n up "y theattaching officer in triplicate$ dated and signed "y@

0a the custodian and his sureties8

0" the officer of the ourt !ho made the attachment8 0c the person !hose property is attached

and made over8 and

0d t!o respecta"le !itnesses.

5ne copy !ill "e transmitted to the ourt "y the attaching officer and placed on the record8 one

copy !ill "e made over to the person !hose property is attached and one copy !ill "e made to

the custodian.

. In regard to livestoc the follo!ing directions apply:

!



0a The custodian is "ound to tae all reasona"le and proper care of any livestoc entrusted to him.

0" The custodian is responsi"le for the value of any livestoc !hich he fails to deliver to the ourt

or its authori>ed officer$ !hen reuired so to do. If any livestoc is to lost or stolen or dies !hile

in the hands of a custodian$ such custodian is "ound to satisfy the ourt that its loss or death !as

not due to his fault or neglect.

0c If the judgment%de"tor or any person claiming to "e interested in any attached animal has "een

permitted to mae arrangements for feeding the same 0not "eing inconsistent !ith its safe

custody$ !hile it is under attachment$ he may$ in the case of poultry$ milch co!s$ etc.$ tae the

eggs$ mil$ etc.

Arran,e4ent for fee$in, to &e note$ on Sc*e$ule

7henever attached property ept in the village or place !here it is attached is livestoc$ a note

shall "e added on the schedule to sho! !hat arrangements have "een made for its eep$ i.e.,

!hether it is to "e fed "y the custodian$ and$ if so$ at !hat charge or "y the judgment%de"tor or

any person interested. If it is "e fed "y the judgment%de"tor or a person claiming to "e interested

as permitted "y *ule /3%)01 of 5rder I$ the arrangements made should "e descri"ed on the

(chedule to sho! that they are not inconsistent !ith its safe custody.

Arran,e4ents (*en 'alue of propert% is lia&le to $eteriorate

If the property is of such a nature that its value !ill deteriorate unless special arrangements are

made for its storage or for carrying out some preparatory process during the period of attachment

the necessary arrangement shall "e made and noted at the foot of the schedule8 provided that$ if

in such cases the judgment%de"tor and decree%holder agree in !riting to the immediate sale of the

property the officer shall proceed to sell it "y auction forth!ith$ after giving such notice tointending purchasers as the circumstances of the case allo!.

Arran,e4ents su&;ects to appro'al of Court

!1



All arrangements made under these rules shall "e made su"ject to the approval and confirmation

of the ourt executing the decree.

Mo$ification of arran,e4ents

If the arrangement made "y the attaching officer are modified "y the ourt$ a note of the

modifications ordered shall "e made on the schedule and such note shall "e signed "y the parties

!ho originally signed the schedule or a fresh schedule shall "e prepared in the manner provided

a"ove according as the ourt may direct32.

Release of propert%

If the ourt directs the release of the property in !hole or in part$ the articles released shall "e

made over to the person to !hom the ourt orders there to "e delivered$ "y an officer of the

ourt$ in the presence of the custodian$ judgment%de"tor and the !itnesses mentioned8 or$ if their

presence cannot "e conveniently o"tained$ t!o other respecta"le !itnesses.

Recla4ations

If any reclamations are then made$ a note of such reclamation shall "e made at the time "y the

officer of the ourt$ and such note shall "e signed "y the person maing them. The statements of

the custodian and !itnesses shall$ lie!ise$ "e recorded on the su"ject "y the officer of the ourt$

and shall "e signed "y such custodian and !itnesses.

Custo$ian lia&le for cri4inal &reac* of trust

Any person !ho has undertaen to eep attached property under *ule /3010c of 5rder I

shall not "e lia"le to "e proceeded against as a surety under (ection 1/G 0vide *ule /3#$ "ut if

the facts disclose that he has "een guilty of ?criminal "reach of trust $ he !ill also "e lia"le to "e‟

prosecuted for that offence.

2 Faari ram v. rai &ahadur &ansidhar '1(6* 6! 0 6.

!2



Instructions reattac*4ent of propert% (*ic* is not left in local custo$% @

Instructions laid do!n in *ules /3 to /3# of 5rder I refer$ in the main$ to cases in !hich

attached property is not removed from the to!n or village in !hich it is found "y the attaching

officer. In cases in !hich the property is not left in local custody the attaching officer should still$

in order to avoid$ as far as possi"le$ resistance or o"struction and to facilitate the disposal of

claims "e careful to attach the property in the presence of t!o respecta"le house holders of the

village or to!n !here the attachment is made and to dra! up a schedule of property attached and

to procure their signatures to it. 33

SALE O# PROPERT AND DELI<ER TO T!E PURC!ASER .9

References

The provisions of the ivil 4rocedure ode$ 1;+3$ on the su"ject of sales are contained in 5rder

I$ *ules -/ to 1+2 as amended "y the 4unja" ,igh ourt 0vide hapter

21. *ule -/ to 3 deal !ith &sale generally'8 *ules / to F1$ !ith &sale of movea"le property'8

and *ules F2 to 1+/ !ith &sale of immova"le'.

Settle4ent of procla4ation of sale

Eansidhar v. haari ram 07 1(( ,at 21.

! http://c4a.gov.in/data/<xecutions.pd

!



7henever a ourt maes an order for the sale of any attached property under 5rder I$ *ule

-/$ it shall$ if the property "e land assessed to land revenue$ revenue%paying or revenue%free land$

or any interest in such land$ act as directed in the rules hereinafter prescri"ed. If the property "e

of any other description the ourt shall fix a convenient day$ not "eing distant more than fifteen

days$ for ascertaining the particulars specified in 5rder I$ *ule --02$ and setting the

proclamation of sale. =otice of the day so fixed shall "e given to the parties or their pleaders.

EnFuir% as to encu4&rances fro4 Su&Re,istrarKs office

01 If the property "e immova"le 0other than revenue%paying or revenue%free land the ourt may

call upon the (u"*egistrar !ithin !hose su"%district such property is situated to search his

registers and report$ "efore the date fixed for settling the proclamation$ to !hat incum"rances$ if

any$ the property is lia"le. It is very desira"le that such searches should "e ordered in all cases$

!ith a vie! to the prevention of fraud$ "ut it should "e noted that they cannot "e ordered if the

decree%holder is not !illing to pay the necessary fees. The fees paya"le are at the rates prescri"ed

in the second proviso to Article II of the ta"le of registration fees pu"lished !ith 4unja"

Bovernment notification =o. 22FG+8 dated the 2Gth (eptem"er8 1;23$ as amended "y 4unja"

Bovernment notification =o. 23G;$ dated the 1Gth 9une$ 1;32.

02 the amount recovered in this "ehalf "y the ourt !ill first "e placed in deposit and !ill then "e

paid to the *egistration #epartment$ "y means of repayment vouchers endorsed in their favour.

03 The report of the (u"%*egistrar shall "e open to the inspection of the parties$ or their pleaders$

free of charge$ "et!een the time of its receipt "y the ourt and the settlement of the

proclamation of sale.3G

Settle4ent of procla4ation of sale? Esti4ate of 'alue

5n the day so fixed$ the ourt shall$ after perusing the documents$ if any$ filed under 5rder I$

*ules 13 and 1/ of the ode$ and the report referred to in the preceding paragraph8 after

examining the decree%holder$ and judgment%de"tor$ if present$ and after maing such further

" Bhemchand #hankar v. ishnu haari '1()* 1 #++ 1)

!!



inuiry as it may consider necessary$ settle the proclamation of sale specifying as clearly and

accurately as possi"le the matters reuired "y 5rder I$ *ule --02$ of the ode$ in the

follo!ing form:

=escripti

on o

propert3

including

name o

village

and

&oundari

es? i

Iame o

4udgeme

nt

de&tor

<xtent o

interest o

4udgement-

de&tor in

the

propert3 soar as it has

&een

ascertained

&3 the

=etails o

incum&ranc

es? i

an3? to

which the

propert3 is

lia&le

so ar as

the3 can &e

ascertained

&3

0n3 other

known

particulars

&earing on

the

nature andvalue o the

propert3

necessar

3

+ourt the +ourt

1 2 ! "

!"



This proclamation for sale is an important part of the proceedings and the details should "e

ascertained and noted !ith care. This !ill remove the "asis for many a "elated o"jection to the

sale at a later stage.

It is not necessary for the ourt itself to give in this proclamation its o!n estimate of the value of

the property. It is sufficient to include in it the estimate$ if any$ given "y either or "oth of the

parties 4roviso added to 5rder I$ *ule --020e "y the 4unja" ,igh ourt<.

The proclamation$ !hen settled$ shall "e signed "y the 9udge$ and shall "e made in the manner

prescri"ed "y 5rder I$ *ule -$ of the ode.

It should "e noted that the period of thirty days and fifteen days mentioned in 5rder I$ *ule

-F$ ivil 4rocedure ode$ has "een reduced "y the 4unja" ,igh ourt to fifteen days and one

!ee$ respectively.

Infor4ation o&taine$ after procla4ation

If$ after the proclamation has "een pu"lished$ any matter is "rought to the notice of the ourt

!hich it considers material for intending purchasers to no!$ the ourt shall cause the same to

"e notified to intending purchasers !hen the property is put up for sale. 3-

Costs of procla4ation

The costs of the proceedings herein"efore prescri"ed shall "e paid$ in the first instance$ "y the

decree%holder8 "ut they shall "e charged as part of the costs of execution$ unless the ourt$ for

reasons to "e specified in !riting$ considers that they should$ either !holly or in part$ "e omitted

therefrom.

6 Ahacker rav4i v. thacker keshar&ai 07 1("! Butch "".

!6



Grant of ti4e to $e&tor to arran,e pri'ate alienation

Attention is called to the provisions of 5rder I$ *ule F3 of the ode$ !hich confers on the

ourt the po!er of postponing$ at the instance of the judgment%de"tor$ a sale of immova"le

property in execution of decree$ if it is satisfied that the amount of the decree may "e raised "y

mortage or lease or private sale of such property or of any other property of the judgment%de"tor.

are must "e taen that this po!er is not so exercised as to inflict an injury on the decree%holder.

In clause 03 of *ule F3 uoted a"ove it is expressly laid do!n that the *ule does not apply to a

sale of property directed to "e sold in execution of decree for sale in enforcement of a mortgage

of$ or charge on$ such property. 3

A$;ourn4ent of sale 5

T*e sale shall "e held at the time and place specified in the proclamation$ unless the ourt

adjourns it to a specified day and hour$ or the officer conducting the sale 0!ith the leave of the

ourt$ if the sale is made in or !ithin the precincts of the ourthouse adjourns it for reasons

!hich must "e duly recorded. 7henever a sale is adjourned for a longer period than thirty days$ a

fresh proclamation shall "e made$ unless the judgment%de"tor consents to !aive it.

Purc*ase of auction &% $ecree*ol$er or officer connecte$ (it* auction @ Attention is dra!n to 5rder I$ *ule 3$ of the ode of ivil 4rocedure$ 1;+F$ !hich directs

that an officer having any duty to perform in connection !ith any sale in execution of a decree$

shall not directly or indirectly "id for$ acuire or attempt to acuire any interest in the property

sold8 and to 5rder I$ *ule 2$ of the ode$ !hich prohi"its the holder of a decree in execution

of !hich property is sold from "idding for or purchasing the property !ithout the express

permission of the ourt executing the decree. 0(imilarly mortagee is also for"idden to "id at sale

!ithout the leave of the ourt.

Decree*ol$er nee$ not pa% sale 4one%

ahendra singh v. dataram 4agnnath '1(()* ( #++ 2).

!



lause 02 of *ule F/ of 5rder I ena"les the ourt to dispense !ith the deposit of earnest

money !hen the decree%holder is the purchaser and is entitled to set off the purchase money

under *ule 2. *ule F- maes the forfeiture of earnest money optional.

Su&4ission of state4ents of forfeiture of earnest 4one%8

Purc*ase 4one% : its pa%4ent to $ecree*ol$er or its refun$8 Refun$ of

co44ission

4urchase money deposited in ourt upon the sale of immova"le property shall "e retained "y the

ourt until the expiry of a period of fifteen days from the date of the order confirming the sale. If

no notice of an appeal having "een presented "y the party seeing to set the sale aside$ "e given

to the ourt !ithin that period$ the purchase money less the sum !hich has to "e credited to

Bovernment or paid to the ourt Auctioneer as commission on the sale 0 see paragraph 22 may

"e paid on the demand of the decree%holder. If such notice "e given !ithin the prescri"ed period$

the purchase money shall "e retained in deposit until the appeal is decided$ unless the party at the

time entitled to receive it gives security$ to the satisfaction of the ourt to repay it at any time

!hen he may "e reuired "y the ourt$ so to do.3F

T*e c*an,es intro$uce$ &% t*e Pun;a& !i,* Court in Or$er ""I? Rule @/? Ci'il Proce$ure

Co$e? reFuire careful attention 0vide C*apter 1728

Application to set asi$e

Applications for setting aside sales are freuently made under 5rder I$ *ule ;+$ ivil

4rocedure ode. An application under this *ule can "e made not only "y the decree%holder or person entitled to ratea"le distri"ution in the assets "ut also "y any person &!hose interests are

affected "y the decree'. )ut the grounds on !hich such an application can "e made are restricted

and should "e carefully "orne in mind. An application under this *ule can only "e made on the

) =esh &andhu gupta v. I.. 0nand '1((!* 1 #++ 11.

!)



ground of material irregularity or fraud in pu"lishing or conducting the sale$ and secondly$ it

must "e proved that the application has suffered su"stantial injury as a result of the material

irregularity or fraud complained of. )oth these conditions must "e satisfied "efore any sale is

aside under this *ule. It has "een provided further in the 4unja" that no sale can "e set aside on

any ground !hich the application under this *ule must "e made !ithin 3+ days of the sale

0Article 12$ (chedule I$ of the Indian Cimitation Act$ 1;-3. 3;

Application &% purc*aser to set asi$e sale

5rder I$ *ule ;1$ of the ode of ivil 4rocedure$ 1;+F$ ena"les the purchaser at a sale of

immova"le property in execution of decree to apply to the ourt to set aside the sale on the

ground that the de"tor had no salea"le interest therein. (uch an application must also "e made

!ithin thirty days from the date of the sale (see, Article 12$ (chedule I to the Indian Cimitation

Act$ I of 1;-3. It should "e noted that the *ule applies only !hen the judgment%de"tor has no

interest at all in the property sold "ut not !hen he has some interest at any rate in it$ ho!ever$

small that interest may "e.

Confir4ation of sale : Appeal

If no application to set aside the sale is made under *ules F;$ ;+ or ;1 !ithin thirty days$ or theapplication is disallo!ed$ the ourt must confirm the sale:

104rovided that$ !here any property is sold in execution of a decree pending the final disposal of

any claim to$ or any o"jection to the attachment of$ such property the ourt shall not confirm

such sale until the final disposal of such claim or o"jection. An appeal lies from an order

confirming or setting aside a sale "ut no separate suit is maintaina"le to challenge the order.

2

07here a third party challenges the 9.#. s title "y filing a suit against the auction purchaser the‟

decree%holder and the judgment de"tor shall "e necessary parties to the suit and if the suit is

decreed$ the ourt shall direct the decree holder to refund the money to the auction purchaser

( #araswati&ai v. govindrao keshavrao 07 1(61 , 1!".

!(



and !here such an order is passed the execution proceedings in !hich the sale had "een held$

shall "e revived at the stage at !hich the sale !as ordered. /+

Refun$ to purc*aser

7hen such a sale is set aside under 5rder I$ *ule ;2$ *ule ;3 provides for the recovery and

repayment to the purchaser of the purchase money. The ourt should not refer him to a separate

suit for the money paid "y him$ !hich should "e recovered 0if necessary and refunded to him$

su"ject to the provisions of paragraph 23.

Certificate of sale

7hen a sale of immovea"le property has "ecome a"solute$ the ourt shall grant a certificate

stating the property sold and the name of the person$ !ho$ at the time of the sale$ is declared to

"e the purchaser. This certificate should "e in the prescri"ed form$ and must "ear the date of the

confirmation of the sale$ and he stamped$ at the expense of the purchaser$ in conformity !ith the

provisions of hapter II$ 4art )$ and Article 1F of (chedule IA of the Indian (tamp Act II of

1F;;$ as amended "y 4unja" Act$ III of 1;22$ !hen the terms of the certificate have "een

finally$ settled$ the draft shall "e signed "y the 9udge and placed !ith the record of the execution

proceedings$ and the certificate granted to the purchaser 0!hich should "e in exact conformity!ith such draft shall "e engrossed on the stamp paper$ free of copying charge. Instances have

occured !here the purchaser has not taen his certificate$ "ut has ased merely for a draft

certificate$ to "e appended to the file of execution$ his idea "eing to use the draft certificate in

proof of his title to the property purchased. (u"ordinate ourts are !arned to guard against such

su"terfuges./1 =o draft certificate should in any case "e dra!n up until the stamp duty reuired

"y la! has "een paid.

It should "e noted that the title to the purchaser accrues from the date of the sale$ though a

certificate can only "e granted after its confirmation.

! ahanu &ai v. harakchand? 07 1(1" Iag ().

!1 #aro4 rani v. sudarshan kumar +hadha '1()!* ! #++ (.

"



Cop% of certificate of sale of i44o'a&le propert% to &e sent to Re,istration

office

A copy of the certificate$ !hether the property sold "e land or other immovea"le property$ and

!ithout regard to the amount of the purchase%money$ shall "e sent to the *egistering 5fficer$

!ithin the local limits of !hose jurisdiction the !hole or any part of the property is situated to "e

filed in his supplementary )oo =o. I.

This copy should "e dra!n up in vernacular !ith permanent "lac in or !ith &registration in'

o"taina"le from the entral (tationary 5fficer$ alcutta$ and on the prescri"ed form !hich is

o"taina"le on indent from the ontroller of 4rinting and (tationery$ 4unja".

68 0i Court official for conducting sales— (ales in execution of decrees shall ordinarily "e

conducted "y the ourt Auctioneer. The #istrict 9udge may direct "y special order that the

sale in a particular case or cases shall "e conducted "y the =a>arat staff.

0ii In every district$ save as other!ise prescri"ed$ the 5fficial *eceiver should ordinarily "e

appointed ourt Auctioneer.

0iii Security by Court Auctioneers— Every ourt Auctioneer shall give security in the sum of

*s. 2$+++$ over and a"ove any security he may have given as 5fficial *eceiver$ for the

satisfactory discharge of his duties. This security shall "e furnished to the satisfaction of the

#istrict 9udge. The rules in hapter /%#$ ,igh ourt *ules and 5rders$ olume II$ !hich govern

the taing of security from 5fficial *eceivers shall$ mutatis mutandis, apply also to ourt

Auctioneers.

Proce$ure for return of sale (arrant

0i A !arrant of sale shall not "e delivered to the ourt Auctioneer direct "y the ourt ordering

sale "ut shall "e for!arded to him through the process%serving agency. After the sale the !arrant

"1



and connected papers shall "e returned "y the Auctioneer to the process%serving Agency !hich

shall for!ard it to the ourt concerned.

0ii Sale under supervision of Court Auctioneers— All sales of property !hose estimated values

exceeds *s. G++L% or less may "e conducted "y agents of the ourt Auctioneer. In all cases the

ourt Auctioneer is responsi"le for proper compliance !ith all legal reuirements and for all the

acts of his agents. /2

The ourt Auctioneer shall each morning$ supply to each ourt a date%sheet sho!ing the sales

already fixed "y all courts in order that sales !hich he has to attend may not "e fixed at different

places on the same day.

0iii Deposit of sale proceeds into Government treasury— The ourt Auctioneer shall himself

deposit into the treasury all sums realised at auction sales conducted "y him or his staff. All sums

realised at sales conducted at places !here there is a treasury shall "e deposited into the treasury

or the (tate )an of India$ as the case may "e$ on the first !oring day after the sale. The

#istrict 9udge shall prescri"e periods$ !ithin !hich the proceeds of sales conducted at other

places shall "e deposited. The periods so prescri"ed shall "e reported to the ,igh ourt and shall

"e as short as possi"le. /3

Go'ern4ent co44ission

!2 #ultana &egum v. prem chand 4ain '1((* 1 #++ .

! Eha&ani das3a v. tulsi ram keot 07 1(( 9au (.

"2



0i ommission at the follo!ing rates shall "e deducted from the proceeds of sales under this

hapter:

0a If the sale%proceeds do not exceed rupees five thousand@at five per centum.

0" If the sale%proceeds exceed rupees five thousand@at five per centum on rupees five thousand

and t!o%and%a%half per centum on the remainder.

0ii If the sale is conducted "y the ourt Auctioneer$ F+ per cent of the commission !ill "e paid to

him and 2+ per cent !ill "e paid into the Treasury to the credit of Bovernment. All incidental

expenditure shall "e met "y the Auctioneer.

0iii If the sale is conducted "y the =a>arat staff$ the !hole of the commission shall "ecredited to Bovernment and nothing shall "e paid to the officer conducting the sale. In such

cases$ the expenses incurred in conducting the sale$ including the cost of advertisement$ must not

exceed the amount of commission.

0iv !penses of custody etc.— The expenses incurred in the care$ custody and eep of attached

property 0as taxed "y the ourt shall "e a first charge on the sale%proceed thereof$ after the

deduction on the commission mentioned a"ove.

Co44ents

7here evacuee property !hich could not "e attached and sold under (ection F of the East 4unja"

Evacuee 0Administration of 4roperty Act$ 1;/$ !as put to auction "y reason of a mistae on

the part of the ourt and the custodian applies to have the sale set inside$ it is clear case for

departure from the rule contained in 4ara 22 dealing !ith the matter of commission paya"le on

auction sales$ and the custodian is not lia"le to pay the commission of the ourt auctioneer.

%ustodian &vacuee 'ro$erty De(hi '8 )am Kishan and others44

!! 07 1("2 ,un4a& 1!1.

"



7here the auctioneer accepted cheue as deposit under 5rder I *ule F/ 4 and the cheue

!as not encashed. The purchaser !as held lia"le to pay commission of the auctioneer. Kabu(

Sin#h '8 S. *a(+ant Sin#h and others4

C*ar,es of Court Auctioneers

0i =o commission shall "e paid on the proceeds of sales set asides for a material irregularity in

pu"lishing of conducting the sale. The commission on the proceeds of a sale set aside for any

other cause shall "e paid "y the person at !hose instance and for !hose "enefit the sale is set

aside and the ourt Auctioneer shall "e entitled to his share of such commission.

0ii If a sale is set aside the purchase money shall "e refunded in full to the Auction 4urchaser

unless it is set aside at his instance and for his "enefit in !hich event the commission due under

paragraph 22 shall "e deducted from the sum to "e refunded.

7here a sale is set aside after the commission has "een paid to the ourt Auctioneer$ the ourt

shall recover it from him and shall refund it to the Auction 4urchaser if he is entitled to the

refund of the !hole the purchase money. In such cases the Bovernment share of the commission

shall also "e refunded.

0v In cases in !hich auction sales are ordered$ "ut not completed or do not tae place at all$ the

ourt auctioneer shall "e paid only his actual expenses$ provided that if there has "een$ in the

opinion of the ourt$ clear negligence on the part of the auctioneer (e.g., failure to advertise

leading to a"sence of "idders he !ill not "e entitled to any compensation. The amount of actual

expenses if held due under this rule !ill "e determined "y the ourt and shall "e paid "y the

decree%holder or the judgment%de"tor as the ourt may direct./-

!" 07 1("" I8+ ',un4a&* !!!.

!6 #ultana &egum v. prem chand '1((* 1 #++ .

"!



Con$uct of sale &% Naarat staff @

0i 7here the #istrict 9udge directs that a sale "e conducted "y the =a>arat staff$ the proper

officer to conduct the sale is.

0a 7here the sale is ordered "y a ourt of (mall auses@the #epartment 5fficer or such other

officer as the ourt may appoint.

0" 7here the sale is ordered "y a ourt other than a ourt of (mall auses:

01 The ivil =a>ir$ for all sales ordered "y ourts located at #istrict ,eaduarters and for all

other sales in !hich the value of the property to "e sold is estimated to exceed *s. G$+++.

02 The =ai" =a>ir of the ourt ordering the sale for other sales.

0ii In every case in !hich the ivil =a>ir is not reuired$ under these directions or the directions of

the #istrict 9udge$ to conduct the sale in person$ such sale may "e conducted under the orders

and upon the responsi"ility of the ivil =a>ir$ "y the =ai" =a>ir deputed "y him for the purpose.

0iii 7hen it is desira"le to have the sale conducted at the place !here the attached property is

situate and the property is of small value$ and a =a>ir or =ai" =a>ir is not availa"le for the duty$

an execution "ailiff may "e deputed to conduct the sale.

0ivA process%server shall not "e employed to conduct sale !ithout the authority in !riting of the

5fficer%in%charge of the 4rocess%serving Agency concerned. (uch order shall not "e made unless

no other officer is availa"le and the value of the property to "e sold is estimated at *s. 1++ or

less.

0v The #istrict 9udge may issue instructions$ consistent !ith these directions$ for the further

regulation of the conduct of sales "y the civil =a>ir and his esta"lishment.

Sale of ,uns or ar4s

""



7henever guns or other arms in respect of !hich licenses have to "e taen "y purchasers under

the Indian Arms Act I of 1FF$ and *ules thereunder$ are sold "y pu"lic auction in execution of

decrees$ the ourt directing the sale shall give due notice to the Kagistrate of the district of the

names and addresses of the purchasers and of the time and place of the intended delivery to the

purchasers of such arms$ that proper steps may "e taen "y the 4olice to enforce the

reuirements of the Indian Arms Act.

E"ECUTION O# DECREES AGAINST AGRICULTURISTS 9

Propert% exe4pt fro4 attac*4ent an$ sale etc8

The follo!ing property of an agriculturist is exempt from attachment and sale.

0a2 The necessary !earing apparel$ cooing vessels$ "eds and "eddings of the judgement%de"tor$ his

!ife and children$ and such personal ornaments as$ in accordance !ith religious usage$ cannot "e

parted !ith any !oman8 -Section B0720a2 of t*e Co$e83

0&2 Implements of hus"andry$ and such cattle and seed%grains as may$ in the opinion of the ourt "e

necessary to ena"le him to earn his livelihood as an agriculturist and such portion of agriculturist

produce or any class of agricultural produce as may have "een declared "y the (tate Bovernment

to "e free from Cia"ility under Section 7 vide also clause 0&2 of t*e pro'iso to Section B 072

of t*e Co$e38

0c 7here the judgment%de"tor is lia"le to pay land revenue$ so much of the produce of the land as

the collector thins necessary for seed%grain and the su"sistence until the harvest next follo!ing

of the judgment%de"tor$ his family and cattle exempted under head 0" (ection + of the 4unja"

Cand *evenue Act$ read !ith (ection FF of the 4unja" Tenancy Act and (ection -+010p of the

ode of ivil 4rocedure. 6nder (ection -1 of the ivil 4rocedure ode$ the 4unja" Bovernmenthas declared that in the case of agriculturists$ the judgment%de"tor s entire fodder crops$‟

including gram%oats$ chari$ mai>e and guara$ one%third or 2+ maunds$ !hichever is greater$ of

foodgrains$ and one%third of all other crops shall$ su"ject to the provisions of clauses 0" and 0p

! http://m4a.gov.in/#ite/8pload/97/aterial;2on;2<xecution;2o;2=ecrees

pd

"6



of su"%section 01 of (ection -+ of the ivil 4rocedure ode and of the proviso to (ection + of

the Cand *evenue Act$ "e exempted from lia"ility to attachment or sale in the execution of a

decree for the purpose of providing$ until the next harvest for the cultivation of land and for the

support of the judgment%de"tor and his family.

0$2 ,ouses and other "uildings 0!ith the materials and the sites thereof and the land immediate

appurtenant thereto and necessary for their enjoyment "elonging to an agriculturist and not

proved "y the decree%holder to have "een let out on rent or lent to persons other than his father$

mother$ !ife$ son$ daughter$ daughter%in%la!$ "rother$ sister or other dependants or left vacant for

a period of year or more8 -Section B0720c2 of t*e Co$e an$ Section .6 of t*e Pun;a& Relief of

In$e&te$ness Act as a4en$e$ &% Pun;a& Act "II of 7/9B38

0e Kilch animals$ !hether in mil or in calf$ ids$ animals$ used for the purpose of transport or

draught cart or open spaces or enclosures "elonging to an agriculturist and reuired for use in

case of need for tying cattle$ paring carts or staing fodder or manure clause deemed to "e

added to the proviso to (ection -+01 of the ode$ "y 4unja" Act II of 1;/+<.

0f (tanding crops except cotton and sugarcane. (ection 1+01 of the 4unja" #e"tors 4rotection‟

Act<.

0g (tanding trees apart from the land on !hich they stand cannot "e sold (ection 1+ 02 of the

4unja" #e"tors 4rotection Act.<‟

No &ar to t*e sale of lan$ &elon,in, to an a,riculturist

The 4unja" Cand Alienation Act$ 1;++ !as replaced "y the adaptation of Ca!s 0Third

Amendment 5rder$ 1;G1. 0(.*.5. G+F$ dated the April$ 1;G1. There is no! no "ar to the sale in

execution of a decree of the land "elonging to an agriculturist.

Exe4ption of ancestral i44o'a&le propert%

Attention is invited to the provisions of (ection ; of the 4unja" #e"tors$ 4rotection Act !hich

lays do!n that ancestral immova"le property in the hands of a su"seuent holder shall not "e

"



lia"le in the execution of a decree or order of ourt relating to a de"t incurred "y any of his

predecessors%in%interest. Thus rule$ ho!ever$ is to "e applied only &!hen custom is the rule of

decision in regard to succession of immova"le property'. It is not applica"le !hen the de"ts has

"een expressly charged "y !ay of a mortgage. /F

Attac*4ent an$ sale to &e carrie$ out t*rou,* Collector

The attachment and sale of the land and its produce !ill "e carried out "y an order addressed "y

the ivil ourt to the ollector or such *evenue 5fficer as he may appoint in this "ehalf under

(ection 1/1 of the 4unja" Cand *evenue Act and su"ject to the rules made thereunder and the

provisions of the ode contained in 5rder 21$ *ules //$ /G$ /$ and G.

68 APPOINTMENT O# RECEI<ER SECTION 67 0$2 H

Execution "y appointment of a receiver is no!n as euita"le execution and is entirely at the

discretion of the court. It is thus an exception to the general rule stated a"ove that it is for the

decree holder to choose the mode of execution. The appointment of a receiver in execution

proceedings is considered to "e an exceptional remedy and a very strong case must "e made outin support of it. The decree holder must sho! "efore resorting to it that there is no effective

remedy for o"taining relief "y the usual modes. The court must also "e satisfied that the

appointment !ill "enefit "oth the judgment de"tor and the decree holder rather than the sale of

the attached property./;

The decree holder can not "e permitted to pray for the appointment of a receiver in respect of

property !hich has "een expressly excluded from attachment "y statute. The provident fund

amount standing to the credit of a retired government servant is exempted from attachment and

sale under the provisions of the provident funds act$ 1;2G. (ince$ no execution can lie against

!) 7am dass v. athura lal '1()2* #++ 1().

!( Aoolsa golal v. 4ohn antone 7 '1))* 11Eom !!).

")



such amount$ no receiver can "e appointed for the said sum.G+ A receiver can "e appointed even

"efore the attachment of property and even in respect of property situated outside the territorial

jurisdiction of the court.G1

This section$ ho!ever should "e read !ith the provisions of order /+ rule 1 regarding the

appointment of the receiver and his po!ers.

8 PARTITION SECTION 69H

7here the decree is for the partition or separate possession of a share of an undivided estate

assessed to the payment of revenue to the government$ execution should "e effected "y the

collector. The o"ject underlying the same is t!o%fold: firstly$ the revenue authorities are more

conversant and "etter ualified to deal !ith such matters than the civil court and secondly$ the

interests of the government !ith regard to the revenue paying estate !ould "e "etter safeguarded

"y the collector than "y the court.G2

8 SPECI#IC PER#ORMANCE O# CONTRACT RULE .1H

7here the decree is for specific performance of a contract$ and the judgment de"tor !ilfully

diso"eys it$ it may "e executed "y attachment of his property$ or "y his detention in civil prisonor "y "oth. 7here the decree does not specify the time for performance of the contract$ it should

"e performed !ithin reasona"le time. Even if the decree for specific performance does not

provide for delivery of possession$ the court can deliver possession ass incidental to the

execution of the sale deed.G3 A party seeing to execute the decree for specific performance must

fulfil the o"ligations imposed upon him "y the decree. If he deposits considerations in the court$

he is entitled to have the sale deed executed.

" 8nion o india v. hira devi? 07 1("2 #+ 22.

"1 =hirendra nath v. santasila de&i? 07 1(6( +al !6.

"2 Lahrun v. gowri sunkar 7 '1)))* 1" +al 1()

" Iarendra +handra v. mantangini ro3 07 1(1 Arp 1.

"(



7here the party against !hom a decree for specific performance of contract has "een passed is a

corporation$ the decree may "e enforced "y attatchment of property of the corporation or$ !ith

the leave of the court$ "y detention in the civil prison of the directors or other principal officers

thereof$ or "y "oth.

@8 IN+UNCTION RULE .1H

7here the decree is for injunction and the judgment de"tor diso"eys it$ it may "e executed "yattaching his property or his detention in civil prison or "y "oth. The provision applies to

prohi"itory as !ell as to mandatory injunctions.

7here the party against !hom a decree for injunction has "een passed is a corporation$ the

decree may "e enforced "y attachment of property of the corporation or$ !ith the leave of the

court "y the detention in civil prison of the directors or other principal officers thereof$ or "y

"oth.

/8 RESTITUTION O# CON+UGAL RIG!TS RULE .1..H

7here the decree is for the restitution of conjugal rights and the judgment de"tor diso"eys it

!ilfully$ it may "e executed "y attachment of his property. A decree for restitution of conjugal

rights can not "e executed "y sending the person hus"and or !ife$ as the case may "e< to civil

prison.G/it serves a social purpose as an aid to the prevention of "rea up of marriage.

If the judgment de"tor o"eys the decree and goes to live !ith the decree holder$ satisfaction can

"e entered of the decree. If the judgment de"tor is ready and !illing to o"ey the decree$ "ut the

"! #heo kumari v. mathur aram? 07 1(6 0 6".

6



decree holder o"structs the execution thereof !ithout reasona"le cause $ the court can at the

instance of the judgment de"tor$ enter satisfaction of the decree.GG

7B8 PAMENT O# MONE RULES 1? .BH

A decree for payment of money 0simpliciter or as an alternative to some other relief may "e

executed "y attachment and sale of the property of the judgment de"tor or "y his detention in

civil prison or "y "oth. The provision is not exhaustive and does not over ride other provisions of

the code. ,ence$ a decree for payment of money can "e executed "y appointment of a receiver.

(ince relata"le distri"ution of assets is one of the recognised modes of execution of a decree for

payment of money $ the same can also "e invoed "y the decree holder.

All money paya"le under a decree shall "e paid either

01 )y depositing in the executing court

02 5r out of court to the decree holder 03 5r as per the direction of the court !hich has passed the decree.

778 E"ECUTION O# DOCUMENT RULE .9H

7here the decree is for the execution of a document and the judgment de"tor neglects or refuses

to o"ey the same$ the court shall after giving an opportunity to decree holder as !ell as to the

judgment de"tor to prepare a draft of document in accordance !ith the terms of the decree$

executes a document in the prescri"ed form. It shall have the same effect as the execution of a

document "y the part ordered to execute the same.

7here the document to "e executed does not relate to the su"ject matter of the suit$ the provision

!ill not apply. A document executed "y the court shall "e treated as executed "y the party

himself. 7here the decree is for the execution of a document$ the executing court has todetermine !hether the draft document is in conformity !ith the terms of the decree. The court

"" #reevastava v. veena 07 1(6"? ,un4 ).

61



for that purpose may scrutini>e the document and may also mae alterations in the draft to "ring

it in conformity !ith the terms of the decree. An order made under this provision is appeala"le. G-

718 ENDORSEMENT O# NEGOTIALE INSTRUMENT

RULE .9H

7here a decree is for the endorsement of a negotia"le instrument and the judgment de"tor

neglects or refuses to o"ey the decree$ the court shall$ after giving an opportunity to the decree

holder as !ell as to the judgment de"tor to prepare a draft of endorsement in accordance !ith the

terms of decree$ endorse a negotia"le instrument in the prescri"ed form.. it shall have the same

effect as the endorsement to the negotia"le instrument "y the party ordered to endorse the same.

An order made under this provision is appeala"le.G

7.8 ATTAC!MENT O# RENT? MESNE PRO#ITS? ETC

RULE 91H

7here the decree is for unascertained rent or mesne profits or any other matter$ the court may

order attachment of the property of the judgment de"tor "efore the amount due from him is

ascertained. (uch attachment$ ho!ever$ can not affect any interest created in the property prior tothe attachment.GF The expression &any other matter' should "e costrued &ejusdem generis'.G;it

covers matters similar to rent and mesne profits. An attachment under this rule is in the

execution. It is thus$ similar to attachment "efore judgment. A decree holder applying for

attachment under this rule can claim ratea"le distri"ution.

798 LIAILIT O# SURET SECTION 796H

"6 @rder ! rule 1 '1*.

" @rder ! rule 1 '1*.

") ,aul &ros. v. ashim kumar '1((* #++ 26 at p.

"( =asrathi v. Brishna '1(61* 2 +ut !12.

62



7here any person has furnished security or given a guarantee

0a Dor the performance of any decree or any part thereof or

0" Dor the restitution of any property taen in execution of a decree or 0c Dor the payment of any money or the fulfilment of any condition imposed on any person $

under an order of the court in any suit or in any proceeding conseuent thereon 8 the

decree or order may "e executed

01 If he has rendered himself personally lia"le$ against him to that extent

02 If he has furnished any property as security$ "y sale of such property to the extent

of the security8

03 If the case falls under "oth the clauses.

The person !ho has furnished the security or given a guarantee shall "e deemed to "e a party

!ithin the meaning of section /.-+

The main o"ject of this provision is to provide a summary remedy for the enforcement of the

lia"ility of the surety !ho has furnished security or given guarantee for any of the purposes

enumerated in the section. It dispenses !ith the necessity to file a separate suit "y the party for

!hose "enefit the security has "een furnished or guarantee has "een given and ena"les him to

execute the decree against the surety as if he !ere a party to the suit and a principal de"tor.-1

7here the surety is lia"le for the fulfilment of conditions imposed "y the court$ the decree can "eexecuted against him to the extent to !hich he has "een made personally lia"le under the surety

"ond.The lia"ility of a surety is joint and several. ,ence$ if the creditor sees to enforce the

surety "ond against one or some of the sureties$ the other surety or surities !ill not "e

discharged. If the decree holder enters into a compromise !ith the principal de"tor !ithout

maing the surety a party$ the latter is discharged from his lia"ility.

=otice to the surety is a condition precedent to the validity of the proceedings against him.

Attachment of property !ithout notice is illegal. It may "e given "y the decree holder or "y the

court !hich passed the decree or "y the executing court.

6 +houthi ,rasad gupta v. union o india 07 1(6 #+ 1).

61 Eank o &ihar ltd. . dr. damodar praasad 07 1(6( #+ 2(.

6



768 DECREE AGAINST #IRM RULES 9/6BH

7here the decree has "een passed against a partnership firm $ it may "e executed against

0a Any partnership property0" Any person !ho has appeared in his o!n name as a partner$ or admitted$ or held to "e a

partner or

0c Any person !ho has "een individually served !ith summons as a partner and has failed

to appear.

If a decree holder !ants to execute a decree against a person other than those mentioned in

clauses 0" and 0c as a partner in the partnership firm$ the lia"ility of such person may "e

determined "y the court. (uch determination operates as a decree.

-2

4roperty "elonging to a partnership firm can "e attached or sold In the execution of decree

passed against the firm or against the partners in the firm as such. (imilarly$ a decree against a

firm as such !ill not affect any partner therein !ho has not "een served !ith a summon to appear

and ans!er. The prime o"ject of this provision is to afford an opportunity to such partner of

disputing his lia"ility as a partner if he desires to do so.-3

The provision of rule G+ of order 21 should "e read !ith order 3+. The latter deals !ith the procedure in suits instituted "y or against firms$ !hile the former provides the mode of execution

of decrees !hich have "een o"tained against firms in the firm name.-/

78 ATTAC!MENT O# DECREE RULE 6.H

7here the property to "e attached is a decree either for payment of money$ or for sale in

enforcement of a mortgage or charge$ the attachment can "e effected either "y the court !hich

passed the decree$ or "y the executing court "y issuing notice to the court !hich has passed the

62 9a4endra narain v. 4ohrimal? 07 1(6! #+ ")1.

6 7avindra fnance v. 3aanai to&acco co. 07 1(( ad 2".

6! 9am&hir mal v. %.B %ute mills co. ltd. 07 1(6 #+ 2!.

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decree-G. 5ther decrees can "e executed "y issuing notice to the decree holder$ prohi"iting him

from transferring or charging the property to "e attached and also "y sending a notice to the

executing court to a"stain from executing the decree until such notice is cancelled.

The provision is intended to prevent the holder of the attached decree from realising and taing

a!ay the fruits of the decree and to ena"le the attaching creditor to come to the court !hich has

passed the decree to apply for execution and thus to safeguard the interests of the attaching

creditor also.

78 PAMENT O# COINS OR CURRENC NOTES

RULE 6H

7here the property to "e attached are coins or currency notes$ the court may direct that such

coins or currency notes or a part thereof sufficient to satisfy the decree$ "e paid to the decree

holder. Pamindari compensation "onds are not coins or currency notes.

6" 7ules " '1* '2* '*

6"



CONCLUSION

Drom the a"ove discussion it clearly appears that execution is the enforcement of decrees and

orders "y the process of court$ so as to ena"le the decree%holder to realise the fruits of the decree.

The execution is complete !hen the judgement%creditor or decree%holder gets money or other

thing a!arded to him "y the judgement$ decree or order.

5rder 21 of the code contain ela"orate and exhaustive provision for execution of decrees and

order$ tae care of different type of situation and provide effective remedies not only to the

decree%holder and judgement%de"tors "ut also to the o"jectors and third parties.

A decree can "e executed "y various modes !hich include delivery of possession$ arrest and

detention of the judgement%de"tor$ attachment of the property$ "y sale$ "y appointment of

receiver$ partition$ cross%decrees and cross%claims$ payment of money etc.

5n exceptional situation$ !here provisions are rendered ineffective or incapa"le of giving relief

to an aggrieved party$ he can file suit in civil court.

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Annexure:Sample execution

Application

6

concept of execution

Documents