Order 21C CPC - Code of Civil Procedure - EXECUTION OF DECREES AND OrderS

Order 21C CPC Description

Order XXI. EXECUTION OF DECREES AND OrderS

Payment under decree

81. Vesting Order in case of other property.

In the case of any movable property not hereinbefore provided for, the Court may make an Order vesting such property in the purchaser or as he may direct; and such property shall vest accordingly.

Sale of immovable property

82. What Courts may Order sales.

Sales of immovable property in execution of decrees may be Ordered by any Court other than a Court of Small Causes.

HIGH COURT AMENDMENT

Kerala.-In Order XXI, in rule 82, for the words "of Small Causes", substitute the words "exercising small cause jurisdiction". (w.e.f. 9-6-1959).

83. Postponement of sale to enable judgment-debtor to raise amount of decree.

(1)Where an Order for the sale of immovable property has been made, if the judgment-debtor can satisfy the Court that there is reason to believe that the amount of the decree may be raised by the mortgage or lease or private sale of such property, or some part thereof, or of any other immovable property of the judgment-debtor, the Court may, on his application, postpone the sale of the property comprised in the Order for sale on such terms and for such period as it thinks proper, to enable him to raise the amount.

(2) In such case the Court shall grant a certificate to the judgment-debtor authorizing him within a period to be mentioned therein, and notwithstanding anything contained in section 64, to make the proposed mortgage, lease or sale:

Provided that all moneys payable under such mortgage, lease or sale shall be paid, not to the judgment-debtor, but, save in so far as a decree-holder is entitled to set-off such money under the provisions of rule 72, into Court:

Provided also that not mortgage, lease or sale under this rule shall become absolute until it has been confirmed by the Court.

(3) Nothing in this rule shall be deemed to apply to a sale of property directed to be sold in execution of a decree for sale in enforcement of a mortgage of, or charge on, such property.

84. Deposit by purchaser and re-sale on default.

(1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent, on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.

(2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under rule 72, the Court may dispense with the requirements of this rule.

HIGH COURT AMENDMENT

Allahabad.-In Order XXI, in rule 84, in sub-rule (2), at the end, insert the following words, namely:-

"The court shall not dispense with the requirements of this rule in a case in which there is an application for rateable distribution of assets."

[Vide Notification No. 16699-H, dated 17th January, 1953.]

85. Time for payment in full of purchase-money.

The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property:

Provided, that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 85,-

(i) after the words "purchase-money payable", insert the words "together with the amount required for general stamp paper for certificate under rule 94".

(ii) for the proviso, substitute the following provisos and Explanation, namely:-

"Provided that, in Respect of the purchase money, the purchaser shall have the advantage of any set-joff to which he may be entitled under rule 72:

Provided further that, if as a result of some bona fide mistake or miscalculation the amount deposited fails short of the full amount of the purchase-money, the Court may in its discretion allow the shortfall to be made up after fifteen days of the sale, and if the full amount of the purchase-money is deposited within such time as the Court may allow, the Court may condone the delay, if it considers it just and proper to do so.

Explanation.-When an amount is tendered in Court on any day after 1 p.m. but not accepted by the Court and is paid into Court on the next working day between 11 a.m. and 1 p.m., the payment shall be deemed to have been made on the day on which the tender is made." (w.e.f. 1-10-1983)

Gujarat.-In Order XXI, after rule 85, insert the following rule, namely:-

"85A. Set-off where execution has been transferred to Collector.-In cases where execution has been transferred to the Collector, for the purposes of rules 84 and 85, the purchaser shall be deemed to be entitled to a set-off under rule 72 if he produces a certificate to that effect from the Court executing the decree." (w.e.f. 17-8-1961)

Kerala.-In Order XXI, in rule 85,- "

(i) after the words "purchase-money payable", insert the words "together with the amount required for the general stamp paper for the certificate under rule 94".

(ii) in the proviso, for the words "in calculating the amount to be so paid into Court", substitute the words "in respect of the purchase-money", (w.e.f. 1-1-1966)

Madhya Pradesh.-In Order XXI, in rule 85, insert the following Explanation, namely:-

"Explanation.-When an amount is tendered on any day after 1 p.m. but paid into Court on the next working day between 11 a.m. and 1 p.m., the payment shall be deemed to have been made on the day on which the tender is made."

[Vide Notification No. 3409, dated 29th June, 1943.]

Madras.-In Order XXI, for rule 85, substitute the following rule, namely:-

"85. Time for payment in full of purchase-money and of stamp certificate of sale.-The full amount of purchase money payable and the general stamp for the certificate under rule 94 or the amount required for such stamp, shall be deposited into Court by the purchaser before the Court closes on the fifteenth day from the sale of the property:

Provided that in calculating the amount of purchase-money to be so deposited the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72."

[Vide P. Dis. No. 677, dated 25th November, 1944.]

86. Procedure in default of payment

In default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.

87. Notification on re-sale

Every re-sale of immovable, property, in default of payment of the purchase-money within the period allowed for such payment, shall be made after the issue of fresh proclamation in the manner and for the period hereinbefore prescribed for the sale.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 87, for the words "of the purchase-money", substitute the words "of the amount mentioned in rule 85".

[Vide Maharashtra Gazette, Ft. IV-C, p. 418, dated 15th September, 1983 (w.e.f. 1-10-1983).

Kerala.-Same as in Madras.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XXI, in rule 87, for the words "payment of the purchase-money" substitute the words "the payment of the amounts mentioned in rule 85".

[Vide GOMs No. 2922-Home, dated 28th October, 1936-HCP Dis No. 690 of 1936.]

88. Bid of co-sharer to have preference

Where the property sold is a share of undivided immovable property and two or more persons, or whom one is a co-sharer, respectively bid the same sum for such property or for any lot, the bid shall be deemed to be the bid of the co-sharer.

89. Application to set aside sale on deposit

(1) Where immovable property has been sold in execution of a degree, 1[any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person,] may apply to have the sale set aside on his deposition in Court,-

(a) for payment to the purchaser, a sum equal to five per cent of the purchase-money, and

(b) for payment, to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was Ordered less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

(2) Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not unless he withdraws his application, be entitled to make or prosecute an application under this rule.

(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.

1. Subs, by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 89, in sub-rule (1), insert the following proviso, namely:- "Provided that if the full amount required to be deposited in Court under this rule is not deposited at the time of making the application through some bona fide mistake or miscalculation and the short-fall is made up within one week from the date of the discovery of the mistake or calculation, the Court may condone the delay, if it considers it just and proper to do so." (w.e.f. 1-11-1966)

Karnataka.-In Order XXI, in rule 89, in sub-rule (1),-

(i) in clause (b), for the words "such proclamation of sale, have been received by the decree-holder", substitute the words "that proclamation of sale, have been paid or deposited towards satisfaction of the decree". (ii) insert the proviso as in Madras.

Kerala.-In Order XXI, in rule 89, in sub-rule (1),-

(i) in clause (b), for the words "date of such proclamation", substitute the words "date of the proclamation";

(ii) insert the following provisos, namely:-

"Provided that, when several items of properties are sold separately, the sale of one or more of such items may be set aside on depositing in Court the amount of the purchase-money for the items the sale of which is sought to be set aside and a sum equal to five per cent, of that amount, and the balance, if any, of the amount specified in the proclamation of sale as that for the recovery of which the sale was Ordered still remains unrealised:

Provided further that where the immovable property sold is liable to discharge a portion of the decree debt, the payment under clause (b) of this sub-rule need not exceed such amount as under the decree the owner of the property sold is liable to pay." (w.e.f. 9-6-1959)

Madras.-In Order XXI, in rule 89, in sub-rule (1),-

''(i) in clause (b) for the words "date of such proclamation", substitute the words "date of that proclamation",

(ii) insert the following proviso, namely:-

"Provided that where the immovable property sold is liable to discharge a portion of the decree debt, the payment under clause (b) of this sub-rule need not exceed such amount as under the decree the owner of the property sold is liable to pay"

[Vide GOMs 2084 Home, dated 2nd September, 1936-HCP Dis No. 691, dated 13th October, 1936].

1[90. Application to set aside sale on ground of irregularity or fraud

(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conduction it.

(2) No sale shall be set aside on the ground of irregularity or fraud in publishir or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

(3) No application to set aside a sale under this rule shall be entertained upon an ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.

Explanation.-There mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.]

1. Subs, by Act No. 104 of 1976, sec. 72 for rule 90 (w.e.f. 1-2-1977).

91. Application by purchaser to set aside sale on ground of judgment-debtor having no saleable interest.

The purchaser at any such sale in execution of decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.

HIGH COURT AMENDMENT

Gujarat-In Order XXI, after rule 91, insert the following rule, namely:-

"91A. Deposits how to be made., where execution is transferred to Collector.-Where the execution of a decree has been transferred to the Collector and the sale has been conducted by the Collector or by an officer subordinate to the Collector, an application under rule 89, 90 or 91, and in the case of an application under rule 89, the deposit required by that rule if made to the Collector or the officer to whom the decree is referred for execution in accordance with any rule framed by the State Government under section 70 of the Code, shall be deemed to have been made to or in the Court within the meaning of rules 89, 90 and 91." (w.e.f. 17-8-1961)

92. Sale when to become absolute or be set aside.

(1) When no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an Order confirming the sale, and thereupon the sale shall become absolute:

1[Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection.]

(2) Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within 2[sixty days] from the date of sale, 3[or in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an Order setting aside the sale]:

Provided that no Order shall be made unless notice of the application has been given to all persons affected thereby.

4[Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002.

(3) No suit to set aside an Order made under this rule shall be brought by any person against whom such Order is made.

5[(4) Where a third party challenges the judgment-debtor's title by filing a suit against the auction-purchaser, the decree-holder and the judgment-debtor shall be necessary parties to the suit.

(5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction-purchaser, and where such an Order is passed the execution proceeding in which the sale had been held shall, unless the Court directs, be revived at the stage at which the sale was Ordered.]

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, in rule 92, in sub-rule (1), after the words "the Court shall make", insert the words "subject to the provisions of rule 58 (2)".

[Vide Notification No. 4084/35(a}-3(7), dated 24th July, 1926.]

Andhra Pradesh.-Same as in Madras. Bombay.-In Order XXI, in rule 92,-

(i) in sub-rule (1), insert the following proviso, namely:-

"Provided that before confirming the sale the Court shall satisfy itself that the amount paid under rule 85 for the purchase of general stamp paper for the certificate under rule 94 is sufficient for the purpose in accordance with the rate in force at the time of confirmation and may, notwithstanding anything contained in rule 86, give the purchaser such times as it thinks fit for making good any deficiency." (w.e.f. 1-10-1983) (ii) in sub-rule (2), insert words as in Madras by only substituting the words "has become deficient" for the words "has been diminished".

[Vide Notification No. Bl-3312-58, dated 7th April, 1959.]

Kerala.-In Order XXI, in rule 92, in sub-rule (2),--

(i) for the words "thirty days", substitute the words "sixty days", (w.e.f. 9-2-1988)

[Ed.-This amendment relates to sub-rule (2) prior to its amendment made by the Central Act 22 of 2002, sec. 14 (w.e.f. 1-7-2002).]

(ii) after the words "from sale", insert the words "and in case where the amount deposited has become deficient owing to any cause not within the control of the depositor such deficiency has been made good within such time as may be fixed by the Court".

Madhya Pradesh.-In Order XXI, in rule 92, in sub-rule (1), after the words "the Court shall make", insert the words "subject to the provisions of rule 58 (2)".

[Vide Notification No. 3409, dated 29th June, 1943,]

Madras.-In Order XXI, in rule 92, in sub-rule (2), after the words "within thirty days from the date of sale" insert the following words:-

"and in case where the amount deposited has been diminished owing to any cause not within the control of the depositor such deficiency has been made good within such time as may be fixed by the Court."

[Ed.-This amendment relates to sub-rule (2) prior to its amendments made by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977} and Central Act 22 of 2002, sec. 14 (w.e.f. 1-7-2002).]

Patna.-Same as in Allahabad.

1. Added by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

2. Substituted for 'thirty days' by Act No. 22 of 2002, section 14 (w.e.f. 1-7-2002).

3. Subs, by Act No. 104 of 1976, sec. 72 for "the Court shall make an Order setting aside the sale" (w.e.f. 1-2-1977).

4. Inserted by Act No. 22 of 2002, section 14 (w.e.f. 1 -7-2002).

5 Ins by Act No. 104 of 1976, sec. 72 (w.e..f. 1-2-1977).

93. Return of purchase-money in certain cases.

Where a sale of immovable property is set aside under rule 92, the purchaser shall be entitled to an Order for repayment of his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid.

94. Certificate to purchaser.

Where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale of is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI,-

(i) renumber rule 94 as sub-rule (1) thereof;

(ii) after sub-rule (1) as so renumbered, insert following sub-rule, namely:-

"(2) Where immovable property is transferred otherwise than by sale, a document of transfer shall be granted by the Court specifying the property, the name of the person to whom it is transferred and the terms on which the transfer is made. Such document shall bear the date the day on which the transfer was Ordered." (w.e.f. 13-2-1960)

Bombay.-In Order XXI, in rule 94, between the words "sold" and "and", insert a comma and the words "the amount of the purchase-money", (w.e.f. 1-10-1983)

Madhya Pradesh.-Same as in Bombay, (w.e.f. 16-9-1960)

Orissa.-Same as in Patna.

Patna.-In Order XXI, for rule 94, substitute the following rule, namely:-

"94. Certificate to purchaser.-Where a sale of immovable property has become absolute the auction-purchaser shall file the sale certificate stamp within fifteen days from the date of confirmation of the sale, and the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be purchaser. Such certificate shall bear the date the day on which the sale becomes absolute. If the necessary stamp for sale certificate is not filed within the prescribed period the sale may, if the Court thinks fit, be set aside."

95. Delivery of property in occupancy of judgment-debtor

Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, Order to delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.

HIGH COURT AMENDMENT

Madras.-In Order XXI,-

(i) renumber rule 95 as sub-rule (1) thereof;

(ii) after sub-rule (1) as to renumbered, insert the following sub-rule, namely:-

"(2) Where delivery of possession of a house is to be given and it is found to be locked' Orders of Court shall be taken for breaking open the lock and for delivery of possession of the same to the purchaser.

If it is found at the time of delivery, that there are movables, in the house to which the purchaser has no claim and the judgment-debtor is absent or, if present, does not immediately remove the same, the officer entrusted with the warrant for delivery shall make an inventory of the articles so found with their probable value in the presence of respectable persons on the spot, have the same attested by them and leave the movables in the custody of the purchaser after taking a bond from him for keeping the articles in custody pending Orders of Court for disposal of the same.

The officer shall then make a report to the Court and forward therewith the attested inventory taken by him.

The Court shall thereupon issue a notice to the judgment-debtor requiring him to take delivery of the said movables within thirty days from the date of the notice, and in default will be sold in public auction at his risk and the proceeds applied for meeting all legitimate expenses of custody and sale and the balance, if any, will be refunded to the judgment-debtor:

Provided that, if movable articles referred to above are perishable, the officer shall sell them in public auction immediately and bring the proceeds into Court. The notice to the judgment-debtor shall in such case call upon him to receive the amount from Court within three months." (w.e.f. 17-8-1966)

96. Delivery of property in occupancy of tenant

Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, Order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the judgment-debtor has been transferred to the purchaser.

HIGH COURT AMENDMENT

Allahabad.-In Order XXI, after rule 96, insert the following rule namely:-

"96A. (1) The Court executing a decree may of its own motion or on application and on such terms as may appear to it just and reasonable in the circumstances of the case as are acceptable to the transferee, Order that any property of the judgment-debtor attached by it, be transferred otherwise by sale in favour of the decree-holder or any other person not a party to the decree, for the purpose of satisfying the decree or portion thereof.

(2) The provisions of rules 64 to 103 of this Order shall apply mutatis mutandis to a transfer other than sale made under this rule except that the Court may in its discretion dispense with the necessity of such transfer being made after issuing a proclamation or of the transfer being conducted by an officer of the Court by public auction or after issuing a proclamation." (w.e.f. 13-2-1960)

Resistance to delivery of possession to decree- holder or purchaser

97. Resistance or obstruction to possession of immovable property.

(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

1[(2) Where ?ny application is made under sub-rule (1), the Court shall proceed to adjudicate upon ihe application in accordance with the provisions herein con-tained.]

1. Subs. by Act No. 104 of 1976, sec. 72 for sub-rule (2) (w.e.f. 1-2-1977).

1[98. Orders after adjudication.

(1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),-

(a) make an Order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other Order as, in the circumstances of the case, it may deem fit.

(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also at the instance of the applicant, Order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, in-rule 98, for sub-rule (2), substitute the following sub-rule, namely:-

"(2) Where upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor on by some other person at his instigation or on his behalf, or by any transferee where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, Order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the Civil prison for a term which may extend to thirty days. The Court may also Order the person or persons whom it holds responsible for such resistance or obstruction to pay jointly to severally in addition to costs, reasonable compensation to the decree-holder or the purchaser, as the case may be for the delay and expenses caused to him in obtaining possession. Any Order made under this rule shall have the same force and be subject to the same conditions as to appeal or otherwise at if it were a decree." [Vide Maharashtra Government Gazette, Pt. IV, ka, p. 418, dated 15th September, 1983 (w.e.f. 1-10-1983).]

1. Subs,. by Act No. 104 of 1976, sec. 72 for rules 98 to 103 (w.e.f. 1-2-1977).

1[99. Dispossession by decree-holder or purchaser

(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for possession of such property or, where such property has been sol in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2) Where any such application is made, the Court shall proceed to adjudical upon the application in accordance with the provisions herein contained.]

1. Subs. by Act 104 of 1976, sec. 72 for rules 98 to 103 (w.e.f. 1-2-1977)

100. Order to be passed upon application complaining of dispossession

Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,-

(a) make an Order allowing the application and directing that the applicant be pi into the possession of the property or dismissing the application; or

(b) pass such other Order as, in the circumstances of the case, it may deem fit.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, in rule 100, insert the following proviso, namely:-

"Where it is determined that the application is made by person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed, the Court shall dismiss the application under sub-rule (a) above." (w.e.f. 1-10-1983)

101. Questions to be determined

All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, in rule 101, insert the following proviso, namely:-

"Provided that when the Court is not competent to decide such question due to want of pecuniary jurisdiction the Court shall send the execution case to the Court of the District Judge to "Which the said Court is subordinate and thereupon the Court of the District Judge or any other competent Court to which it may be transferred by the District Judge, shall deal with it in the same manner as if the case had been originally instituted in that Court." (w.e.f. 1-10-1983)

102. Rules not applicable to transferee pendent life

Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

Explanation-In this rule, "transfer" includes a transfer by operation of law.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, omit rule 102.

103. Orders to be treated as decrees

Where any application has been adjudicated upon under rule 98 or rule 100 the other made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.]

1[104. Order under rule 101 or rule 103 to be subject to the result or pending suit

Every Order made under rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such Order is made, if in such suit the party against whom the Order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property.

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

1[105. Hearing of application

(1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application.

(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an Order that the application be dismissed.

(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex pane and pass such Order as it thinks fit.

Explanation.-An application referred to in sub-rule (1) includes a claim or objection made under rule 58.]

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

1[106. Setting aside Order passed ex parte, etc.