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Execution proceeding of the property which does not exist
28-Nov-2023 (In Property Law)
Q.actually one dcreed passed in 1998,in eviction and recovery of rent ,against the defender,in such suit they only mention boundaries not any plot number and claiming that such property we get from third person such instrument was registered,here they said that defender was thekedar of said property,,they move an application for execution in,2011 (case was proceed in appellant judicial proceeding till 2010)the execution court also passed the order delivery of property to decree holder,at meantime the judgement debtor move an application the such property is not executed becoze 1-identification of property 2-property is nazul land, and lastly the area wt dcreed is not exist ,claim was 16 bigha land on spot there have only 9 bigha of land out of this 2. Bigha land was in name of xyz,commission allowed and and report submitted as offer said by advocate commissioner,____so issues is that such property can be executed or not,___2wt remedies defender have.
The Execution cannot take place if there is no property.
EXECUTION: MEANING
The term “execution” has not been defined in the code. The expression “execution” means enforcement or implementation or giving an effect to the order or judgement passed by the court of justice.[ii] Simply “execution” means the process for enforcing or giving effect to the judgement of the court.[iii] Execution is the enforcement of decrees and orders by the process of court, so as to enable the decree-holder to realise the fruits of the decree. The execution is complete when the judgement-creditor or decree-holder gets money or other thing awarded to him by the judgement, decree or order.
Illustration:
A files a suit against B for Rs 10,000 and obtains a decree against him. Here A is the decree-holder. B is the judgement-debtor, and the amount of Rs 10,000 is the judgement- debt or the decretal amount. Since the decree is passed against B, he is bound to pay Rs 10,000 to A. Suppose in spite of the decree, B refuses to pay the decretal amount to A, and A can recover the said amount from B by executing the decree through judicial process. The principle governing execution of decree and orders are dealt with in Sections 36 to 74( substantive law) and order 21 of the code( procedural law).
Supreme Court in Ghanshyam Das v. Anant Kumar Sinha[iv]dealing with provision of the code relating to execution of decree and orders, stated, “ so far as the question of executability of a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all aspects. The numerous rules of Order 21 of the code take care of different situations providing effective remedies not only to judgement-debtors and decree-holders but also to claimant objectors, as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measures and appropriate time, the answer is a regular suit in the civil court.
CHAPTER 2: PRINCIPLES WITH REGARD TO EXECUTION OF DECREE AND ORDER
Provision of Cpc relating to execution of decree and order shall be made applicable to both Appeal and Sue.
A decree may be executed by the court which passed the judgement and decree or by some other court which is having competency to implement the judgement passed by such other court.
The court which passed the decree may send it for execution to other court either on application of the applicant (decree-holder) or by the court itself.
A court may order for execution of decree on the application of decree on the application of decree holder (a) by delivery of any property which was in possession of judgement-debtor and decree has been specifically passed concerning such property (b) by attachment and sell of the property of the judgement-debtor (c) by arrest and detention (civil imprisonment) (d) by appointing a receiver (e) in such other manner which depends upon nature of relief granted by the court.
Upon the application of decree-holder, the court may issue “percept” to any other court which is competent in that regard.
All questions arising between the parties to the suit in the decree shall be determined by the court while executing the decree and not by separate suit.
Where 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 be executed by attachment and sell of any such property.
A judgement-debtor may be arrested at any time and on any date shall required to be brought before the court which has passed the decree and his detention may be in civil prison of the district where decree shall have to be executed.
Where immovable property has been sold by the court in execution of a decree such sell shall be absolute. The property shall be deemed to be invested in the favour of purchaser, and the purchaser shall be deemed as a party to litigation.[v]
The court to which decree is sent for execution shall require certifying to the court which has passed decree stating the manner in which decree has been implementing concerning the fact of such execution.[vi]
CHAPTER 3.PROCEDURE IN EXECUTION:
Section 51 to 54 talks about procedure in execution or mode for execution.
Section 51: this section gives the power to court to enforce the decree in general. This section defines the jurisdiction and power of the court to enforce execution. Application for execution of decree under this section may be either oral (order 21 rule 10) or written (order 21, rule 11). Party has to choose the mode of implementation of decree. Court may execute decree as per the choice prayed by the decree-holder or as court may thinks fit.
Mode of executing decree under section 51:
(a). By delivery of any property specifically decreed. Property may be movable or immovable (b). By attachment and sale of the property or by sale without attachment of the property. Under clause (B) of section 51 it is within the power of court to attach the property if it is situated within its jurisdiction.
(c). Court can execute decree by mode of arrest and detention. no execution of decree by arrest or detention of judgement-debtor unless reasonable opportunity is given in the form of show cause notice as why he should not be imprisoned.
(d). It can be executed by appointing a receiver. Within the purview of this section it is permissible to appoint decree-holder himself as the receiver of the judgement-debtors land.
(e). Clause (e) is the residuary clause and comes into play only when the decree cannot be executed in any of the modes prescribed under clause (a) to (d).[vii]
Section 52: Enforcement of decree against Legal representative:
Section 52 deals with a case where the decree is passed against the legal representative of the judgement-debtor.
Section 52 (1) empowers 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. For application of this clause the decree should have passed against the party as the legal representative of the deceased person, and it should be for the payment of money out of the property of the deceased.
Section 52 (2) empowers a creditor to execute his decree against the legal representative personally if he fails to accounts for the properties received by him from deceased person.
Exception to section 52: 1. Court can implement the decree against the personal property of the legal representative provided if he is avoiding, neglecting or evading to make the payment from the property of deceased.
Where he has misutilized the property of deceased and where the legal representative has alienated the property of the deceased person.[viii]
Section 53: Liability of ancestral property.
No legal representative should be held personally accountable where the suit has been filed against a joint Hindu family unless he has received some property of joint Hindu family.
Under pious obligation if has received the property of joint Hindu family then will be held liable. Where the decree has been passed against Karta, no execution be made against the son under pious obligation if the decree is passed after partition. Event after partition a son can be held liable if suit was pending before partition.
The son will be held accountable if after the death of Karta the decree has been executed and son has distributed the property of Karta among themselves. The member of joint Hindu family will be held liable if Karta has taken debt for moral purpose or family purpose.
The nature of suits determines how decree should be implemented.
Illustration: a promissory note has been executed by the father for the purpose of borrowing money. After the death of father the creditor instituted proceeding against son.
Where suit is filed basing on promissory note first it will be seen that whether suit is maintainable or not- if it is filed within three year then the suit will be maintainable. General rule is that son will be held liable if they have received ancestral property.
Where the son is not having knowledge about execution of promissory note, in such case will not be held liable even though has received the ancestral property.[ix]
Section 54: Partition of estate or separation of share.
Section 54 comes into play when a decree has been 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 will be made by the collector. However if the collector refuses to make the partition of the revenue paying property, the civil court can do so.[x] To attract the provision of this section it is not necessary that the plaintiff should ask for the division of government revenue.
Section 54 deals with a case where though the civil court has the power to pass a decree yet it is not competent to execute the same. Under this section the execution of decree shall be made by collector.
CHAPTER 4: PROCESS FOR EXECUTION
Order 21 rule 24 and 25 talks about process for execution.
Rule 24: process for execution
The court has inherent power to defer issue of process as envisaged under rule 24 and can give time to judgement-debtor in appropriate cases.
Rule 24 prescribes the procedure in case of execution of decree. In these matters the [xi]court exercises judicial discretion, which cannot be interfered with by the district judge by issuing administrative order.
According to 24(3) execution must be completed by the date specified on the process for the purpose- Warrants for delivery of possession, therefore, ceased to be executable after expiry of the date appearing on the warrant.
After the process of execution is issued, rule 17 of order 21 cannot be invoked for amendment of execution application. If the amendment seeks to change the nature of execution, the power under section 151 and 153, also cannot be invoked.
Execution proceeding on the death of the decree-holder:-
Possession certificate under Section 214 of Indian Succession Act 1925, will not be necessary for continuation of proceeding by his legal Heirs, even if legal Heirs are not brought on record, the execution proceeding will not abate.
Delivery of possession to the decree-holder without notice to Judgement-debtor is not proper:
Application by judgement-debtor for re-delivery of the possession on the ground that he had no notice of the execution proceedings, dismissed by the trial court, however allowed by the High Court in revision, held, re-delivery of possession to the judgement-debtor was not proper, however, compensation of Rs, 2,000 was awarded to the judgement-debtor.
Execution of decree
Notice under Order 21 Rule 21 is necessary only when the decree holder files an execution of decree for the first time against the legal representative of the deceased.
RULE 25: Endorsement on process :
The officer who entrusted with the execution of the process, shall endorse upon the same date and the manner in which it was executed and also endorsed upon in the reason of delay and in case the process was not executed, will also state reasons thereof. However a person cannot be re- arrested on the ground of absence of endorsement.[xii]
CHAPTER 5: MODE OF EXECUTION.
The code lays down various mode of execution. After the decree-holder files an application for execution of decree, the executing court can enforce execution.
A decree may be enforced by delivery of any property specified in the decree, by attachment and sale or by sale without attachment of the property, or by arrest and detention, or by appointing a receiver, or by effecting partition, or any such manner which the nature of relief requires.
ARREST AND DETENTION
One of the modes of executing a decree is arrest and detention of the judgement-debtor in civil imprisonment.
Where the decree is for payment of money, it can be executed by arrest and detention of teh judgement-debtor.
A judgement-debtor may be arrested at any time on any day in execution of a decree. After this arrest, he must be brought before the court as soon as practicable. For the purpose of making arrest, no dwelling house may be entered after sunset or before sunrise. Further, no outer door of a dwelling house may be broken open unless such dwelling house is in the occupancy of the judgement-debtor and he refuses or prevent access thereto.
No order of detention of the judgement-debtor shall be made where the decretal amount does not exceed Rs.2000.
Where the judgement-debtor pays the decretal amount and costs of arrest to the officer, he should be released once.
A women, judicial officers, the parties, their pleaders, member of legislative bodies, a judgement-debtor where the decretal amount does not exceed Rs 2,000, these person cannot be arrested and detained in civil imprisionment.
A decree for money cannot be executed by arrest and detention where the judgement-debtor is a woman, or a minor, or a legal representative of a deceased judgement-debtor.[xiii]
ATTACHEMENT OF PROPERTY
A decree may also be executed on the application of the decree-holder by attachment and sale only sale without attachment of property. The code recognizes the right of the decree-holder to attach the property of the judgement debtor in execution proceeding and lays down the procedure to effect attachment. Sections 60 to 64 and rules 41 to 57 of Order 21 deals with the subject of attachment of property. The code enumerates properties which are liable to be attached and sold in execution of a decree. It also specifies properties which are not liable to be attached or sold. It also prescribes the procedure where the same property is attached in execution of decrees by more than one court. The code also declares that a private alienation of property after attachment is void.
Section 60(1) declares what properties are liable to attachment and sale in execution of a decree, and what properties are exempt therefrom. All saleable property( movable or immovable) belonging to the judgement-debtor or over which or the portion of which he has a disposing power which he may exercise for his own benefit may be attached and sold in execution of a decree against him.
Section 61 deals where the judgement-debtor is agriculturalist. It state that judgement-debtor is agriculturalist. Any agriculturalist produce is subject matter of agriculturalist. The quantum of attachment of agricultural product depends upon the quantum of decretal amount.
Section 63 where two different courts have attached the same property through different decree, then it will be looked, that which court is superior. The value of the property will determine whether further attachment can be done or not.[xiv]
PERCEPT
Section 46- “precept” means a command, an order, a writ or a warrant. A percept is an order or direction given by court which passed the decree to a court which would be competent to execute the decree to attach any property belonging to the judgement-debtor.
Section 46 provides that court which passed a decree may, upon an application by the decree-holder, issue a percept to that court within whose jurisdiction the property of the judgement-debtor is lying to attach any property specified in the percept.
A percept seeks to prevent alienation of property of the judgement-debtor not located within the jurisdiction of the court which passed the decree so that interest of the decree-holder is safeguarded and protected.
It is interim attachment of the property which lies outside the jurisdiction of court which has passed the order. To protect the interest of the decree holder on his application will issue percept to the court in whose jurisdiction property is situated to attach the property of the judgement-debtor. The interim order for attachment is valid for the period of only 2 months.
GARNISHEE ORDER
It is the proceeding by which the decree-holder seeks to reach money or property of the judgement-debtor in the hands of a third party (debtor of judgement-debtor).
Suppose A owes Rs 1000 to B and B owes Rs 1000 to c. By a garnishee order, the court may require A not to pay money owed by him to B, but instead to pay C, since B owes the said amount to C, who has obtained the order.
“Garnishee order” is an order passed by a court ordering a garnishee not to pay money to the judgement-debtor because the latter is indebted to the garnisher.
SALE OF THE PROPERTY
A decree may be executed by attachment and sale or sale without attachment of any property. Section 65 to 73 and rules 64 to 94 of Order 21 deals with the subject relating to sale of movable and immovable property.
Power of court: Rule 64-65
Rule 64: a court may sell the property, which he has taken into custody under an attachment under order 60.
Rule 65: appointment of officer by the court who will be charged to sell the property. Officer will be the representative of the court and will sell the property for execution of decree.[xv]
Proclamation of sale: Rule 66-67
It is a kind of order or declaration. It operates as a public notice regarding the sale. It’s says that people can participate in auction and sale. Proclamation can be in writing or by customary mode.
Contents of proclamation:-
Time and place of sale
Property to be sold
Revenue, if any, assessed upon the property;
Encumbrance, if any, to which property is liable;
Amount to be recovered;
Details relating to property, such as title deed, length etc.
Time of sale: Rule 68
No sale without the consent in writing of the judgement-debtor can take place before fifteen days in case of immovable property and before 7 days in case of movable property from the date of proclamation in the courthouse. A sell can be conducted immediately if the property is of perishable nature.
Adjournment of sale: rule 69
If the judgement-debtor after the issue of proclamation and before sell has paid the amount, or has partly promised to pay on the given date before completion of public order, if there is any justified reason, in those circumstances, court has discretionary power to postponed the sell. If it has been postponed for period of 30 days, fresh proclamation has to be issued and again the process of rule 67, 68 and 69 will follow.
Sell cannot be postponed where judgement-debtor dies before the date of sell or after the issue of proclamation, or on the date of auction.
Restriction to bid: Rule 72-73
A decree-holder cannot, without the express permission of the court, purchase the property sold in execution of his own decree.
A mortgagee of immovable property cannot, without 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 with the execution sale cannot either directly or indirectly, acquire or any attempt to acquire any interest in the property sold in execution.
Rule 78-78 talks about sale of movable property.[xvi] Rules 74 and 75 relates to the sale of agricultural produce and growing crops. Rule 76 covers negotiable instruments and shares. Sale of movable property should be held by public auction. A sale of movable property will not be said aside on the ground of irregularity in publishing or conducting the sale (rule 78).
Rule 82-94 talks about sale of immovable property.[xvii] Rule 83 enables the executing court to postpone sale to enable the judgement-debtor to raise decretal dues by private alienation.[xviii]
Rule 84-85 provide for payment of purchase money by auction-purchaser. Rule 86 talks about cases of default by auction-purchaser in making requisite payment and resale of property. Rule 89-91 and 93 deals with setting aside sale and effect thereof. Rules 92-94 provide confirmation of sale and issuance of sale- certificate. Section 65 declares the effect of sale.[xix]
CHAPTER6: CONCLUSION
From the above discussion it clearly appears that execution is the enforcement of decrees and orders by the process of court, so as to enable the decree-holder to realise the fruits of the decree. The execution is complete when the judgement-creditor or decree-holder gets money or other thing awarded to him by the judgement, decree or order.
Order 21 of the code contain elaborate and exhaustive provision for execution of decrees and order, take care of different type of situation and provide effective remedies not only to the decree-holder and judgement-debtors but also to the objectors and third parties.
A decree can be executed by various modes which include delivery of possession, arrest and detention of the judgement-debtor, attachment of the property, by sale, by appointment of receiver, partition, cross-decrees and cross-claims, payment of money etc.
On exceptional situation, where provisions are rendered ineffective or incapable of giving relief to an aggrieved party, he can file suit in civil court.
EXECUTION: MEANING
The term “execution” has not been defined in the code. The expression “execution” means enforcement or implementation or giving an effect to the order or judgement passed by the court of justice.[ii] Simply “execution” means the process for enforcing or giving effect to the judgement of the court.[iii] Execution is the enforcement of decrees and orders by the process of court, so as to enable the decree-holder to realise the fruits of the decree. The execution is complete when the judgement-creditor or decree-holder gets money or other thing awarded to him by the judgement, decree or order.
Illustration:
A files a suit against B for Rs 10,000 and obtains a decree against him. Here A is the decree-holder. B is the judgement-debtor, and the amount of Rs 10,000 is the judgement- debt or the decretal amount. Since the decree is passed against B, he is bound to pay Rs 10,000 to A. Suppose in spite of the decree, B refuses to pay the decretal amount to A, and A can recover the said amount from B by executing the decree through judicial process. The principle governing execution of decree and orders are dealt with in Sections 36 to 74( substantive law) and order 21 of the code( procedural law).
Supreme Court in Ghanshyam Das v. Anant Kumar Sinha[iv]dealing with provision of the code relating to execution of decree and orders, stated, “ so far as the question of executability of a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all aspects. The numerous rules of Order 21 of the code take care of different situations providing effective remedies not only to judgement-debtors and decree-holders but also to claimant objectors, as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measures and appropriate time, the answer is a regular suit in the civil court.
CHAPTER 2: PRINCIPLES WITH REGARD TO EXECUTION OF DECREE AND ORDER
Provision of Cpc relating to execution of decree and order shall be made applicable to both Appeal and Sue.
A decree may be executed by the court which passed the judgement and decree or by some other court which is having competency to implement the judgement passed by such other court.
The court which passed the decree may send it for execution to other court either on application of the applicant (decree-holder) or by the court itself.
A court may order for execution of decree on the application of decree on the application of decree holder (a) by delivery of any property which was in possession of judgement-debtor and decree has been specifically passed concerning such property (b) by attachment and sell of the property of the judgement-debtor (c) by arrest and detention (civil imprisonment) (d) by appointing a receiver (e) in such other manner which depends upon nature of relief granted by the court.
Upon the application of decree-holder, the court may issue “percept” to any other court which is competent in that regard.
All questions arising between the parties to the suit in the decree shall be determined by the court while executing the decree and not by separate suit.
Where 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 be executed by attachment and sell of any such property.
A judgement-debtor may be arrested at any time and on any date shall required to be brought before the court which has passed the decree and his detention may be in civil prison of the district where decree shall have to be executed.
Where immovable property has been sold by the court in execution of a decree such sell shall be absolute. The property shall be deemed to be invested in the favour of purchaser, and the purchaser shall be deemed as a party to litigation.[v]
The court to which decree is sent for execution shall require certifying to the court which has passed decree stating the manner in which decree has been implementing concerning the fact of such execution.[vi]
CHAPTER 3.PROCEDURE IN EXECUTION:
Section 51 to 54 talks about procedure in execution or mode for execution.
Section 51: this section gives the power to court to enforce the decree in general. This section defines the jurisdiction and power of the court to enforce execution. Application for execution of decree under this section may be either oral (order 21 rule 10) or written (order 21, rule 11). Party has to choose the mode of implementation of decree. Court may execute decree as per the choice prayed by the decree-holder or as court may thinks fit.
Mode of executing decree under section 51:
(a). By delivery of any property specifically decreed. Property may be movable or immovable (b). By attachment and sale of the property or by sale without attachment of the property. Under clause (B) of section 51 it is within the power of court to attach the property if it is situated within its jurisdiction.
(c). Court can execute decree by mode of arrest and detention. no execution of decree by arrest or detention of judgement-debtor unless reasonable opportunity is given in the form of show cause notice as why he should not be imprisoned.
(d). It can be executed by appointing a receiver. Within the purview of this section it is permissible to appoint decree-holder himself as the receiver of the judgement-debtors land.
(e). Clause (e) is the residuary clause and comes into play only when the decree cannot be executed in any of the modes prescribed under clause (a) to (d).[vii]
Section 52: Enforcement of decree against Legal representative:
Section 52 deals with a case where the decree is passed against the legal representative of the judgement-debtor.
Section 52 (1) empowers 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. For application of this clause the decree should have passed against the party as the legal representative of the deceased person, and it should be for the payment of money out of the property of the deceased.
Section 52 (2) empowers a creditor to execute his decree against the legal representative personally if he fails to accounts for the properties received by him from deceased person.
Exception to section 52: 1. Court can implement the decree against the personal property of the legal representative provided if he is avoiding, neglecting or evading to make the payment from the property of deceased.
Where he has misutilized the property of deceased and where the legal representative has alienated the property of the deceased person.[viii]
Section 53: Liability of ancestral property.
No legal representative should be held personally accountable where the suit has been filed against a joint Hindu family unless he has received some property of joint Hindu family.
Under pious obligation if has received the property of joint Hindu family then will be held liable. Where the decree has been passed against Karta, no execution be made against the son under pious obligation if the decree is passed after partition. Event after partition a son can be held liable if suit was pending before partition.
The son will be held accountable if after the death of Karta the decree has been executed and son has distributed the property of Karta among themselves. The member of joint Hindu family will be held liable if Karta has taken debt for moral purpose or family purpose.
The nature of suits determines how decree should be implemented.
Illustration: a promissory note has been executed by the father for the purpose of borrowing money. After the death of father the creditor instituted proceeding against son.
Where suit is filed basing on promissory note first it will be seen that whether suit is maintainable or not- if it is filed within three year then the suit will be maintainable. General rule is that son will be held liable if they have received ancestral property.
Where the son is not having knowledge about execution of promissory note, in such case will not be held liable even though has received the ancestral property.[ix]
Section 54: Partition of estate or separation of share.
Section 54 comes into play when a decree has been 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 will be made by the collector. However if the collector refuses to make the partition of the revenue paying property, the civil court can do so.[x] To attract the provision of this section it is not necessary that the plaintiff should ask for the division of government revenue.
Section 54 deals with a case where though the civil court has the power to pass a decree yet it is not competent to execute the same. Under this section the execution of decree shall be made by collector.
CHAPTER 4: PROCESS FOR EXECUTION
Order 21 rule 24 and 25 talks about process for execution.
Rule 24: process for execution
The court has inherent power to defer issue of process as envisaged under rule 24 and can give time to judgement-debtor in appropriate cases.
Rule 24 prescribes the procedure in case of execution of decree. In these matters the [xi]court exercises judicial discretion, which cannot be interfered with by the district judge by issuing administrative order.
According to 24(3) execution must be completed by the date specified on the process for the purpose- Warrants for delivery of possession, therefore, ceased to be executable after expiry of the date appearing on the warrant.
After the process of execution is issued, rule 17 of order 21 cannot be invoked for amendment of execution application. If the amendment seeks to change the nature of execution, the power under section 151 and 153, also cannot be invoked.
Execution proceeding on the death of the decree-holder:-
Possession certificate under Section 214 of Indian Succession Act 1925, will not be necessary for continuation of proceeding by his legal Heirs, even if legal Heirs are not brought on record, the execution proceeding will not abate.
Delivery of possession to the decree-holder without notice to Judgement-debtor is not proper:
Application by judgement-debtor for re-delivery of the possession on the ground that he had no notice of the execution proceedings, dismissed by the trial court, however allowed by the High Court in revision, held, re-delivery of possession to the judgement-debtor was not proper, however, compensation of Rs, 2,000 was awarded to the judgement-debtor.
Execution of decree
Notice under Order 21 Rule 21 is necessary only when the decree holder files an execution of decree for the first time against the legal representative of the deceased.
RULE 25: Endorsement on process :
The officer who entrusted with the execution of the process, shall endorse upon the same date and the manner in which it was executed and also endorsed upon in the reason of delay and in case the process was not executed, will also state reasons thereof. However a person cannot be re- arrested on the ground of absence of endorsement.[xii]
CHAPTER 5: MODE OF EXECUTION.
The code lays down various mode of execution. After the decree-holder files an application for execution of decree, the executing court can enforce execution.
A decree may be enforced by delivery of any property specified in the decree, by attachment and sale or by sale without attachment of the property, or by arrest and detention, or by appointing a receiver, or by effecting partition, or any such manner which the nature of relief requires.
ARREST AND DETENTION
One of the modes of executing a decree is arrest and detention of the judgement-debtor in civil imprisonment.
Where the decree is for payment of money, it can be executed by arrest and detention of teh judgement-debtor.
A judgement-debtor may be arrested at any time on any day in execution of a decree. After this arrest, he must be brought before the court as soon as practicable. For the purpose of making arrest, no dwelling house may be entered after sunset or before sunrise. Further, no outer door of a dwelling house may be broken open unless such dwelling house is in the occupancy of the judgement-debtor and he refuses or prevent access thereto.
No order of detention of the judgement-debtor shall be made where the decretal amount does not exceed Rs.2000.
Where the judgement-debtor pays the decretal amount and costs of arrest to the officer, he should be released once.
A women, judicial officers, the parties, their pleaders, member of legislative bodies, a judgement-debtor where the decretal amount does not exceed Rs 2,000, these person cannot be arrested and detained in civil imprisionment.
A decree for money cannot be executed by arrest and detention where the judgement-debtor is a woman, or a minor, or a legal representative of a deceased judgement-debtor.[xiii]
ATTACHEMENT OF PROPERTY
A decree may also be executed on the application of the decree-holder by attachment and sale only sale without attachment of property. The code recognizes the right of the decree-holder to attach the property of the judgement debtor in execution proceeding and lays down the procedure to effect attachment. Sections 60 to 64 and rules 41 to 57 of Order 21 deals with the subject of attachment of property. The code enumerates properties which are liable to be attached and sold in execution of a decree. It also specifies properties which are not liable to be attached or sold. It also prescribes the procedure where the same property is attached in execution of decrees by more than one court. The code also declares that a private alienation of property after attachment is void.
Section 60(1) declares what properties are liable to attachment and sale in execution of a decree, and what properties are exempt therefrom. All saleable property( movable or immovable) belonging to the judgement-debtor or over which or the portion of which he has a disposing power which he may exercise for his own benefit may be attached and sold in execution of a decree against him.
Section 61 deals where the judgement-debtor is agriculturalist. It state that judgement-debtor is agriculturalist. Any agriculturalist produce is subject matter of agriculturalist. The quantum of attachment of agricultural product depends upon the quantum of decretal amount.
Section 63 where two different courts have attached the same property through different decree, then it will be looked, that which court is superior. The value of the property will determine whether further attachment can be done or not.[xiv]
PERCEPT
Section 46- “precept” means a command, an order, a writ or a warrant. A percept is an order or direction given by court which passed the decree to a court which would be competent to execute the decree to attach any property belonging to the judgement-debtor.
Section 46 provides that court which passed a decree may, upon an application by the decree-holder, issue a percept to that court within whose jurisdiction the property of the judgement-debtor is lying to attach any property specified in the percept.
A percept seeks to prevent alienation of property of the judgement-debtor not located within the jurisdiction of the court which passed the decree so that interest of the decree-holder is safeguarded and protected.
It is interim attachment of the property which lies outside the jurisdiction of court which has passed the order. To protect the interest of the decree holder on his application will issue percept to the court in whose jurisdiction property is situated to attach the property of the judgement-debtor. The interim order for attachment is valid for the period of only 2 months.
GARNISHEE ORDER
It is the proceeding by which the decree-holder seeks to reach money or property of the judgement-debtor in the hands of a third party (debtor of judgement-debtor).
Suppose A owes Rs 1000 to B and B owes Rs 1000 to c. By a garnishee order, the court may require A not to pay money owed by him to B, but instead to pay C, since B owes the said amount to C, who has obtained the order.
“Garnishee order” is an order passed by a court ordering a garnishee not to pay money to the judgement-debtor because the latter is indebted to the garnisher.
SALE OF THE PROPERTY
A decree may be executed by attachment and sale or sale without attachment of any property. Section 65 to 73 and rules 64 to 94 of Order 21 deals with the subject relating to sale of movable and immovable property.
Power of court: Rule 64-65
Rule 64: a court may sell the property, which he has taken into custody under an attachment under order 60.
Rule 65: appointment of officer by the court who will be charged to sell the property. Officer will be the representative of the court and will sell the property for execution of decree.[xv]
Proclamation of sale: Rule 66-67
It is a kind of order or declaration. It operates as a public notice regarding the sale. It’s says that people can participate in auction and sale. Proclamation can be in writing or by customary mode.
Contents of proclamation:-
Time and place of sale
Property to be sold
Revenue, if any, assessed upon the property;
Encumbrance, if any, to which property is liable;
Amount to be recovered;
Details relating to property, such as title deed, length etc.
Time of sale: Rule 68
No sale without the consent in writing of the judgement-debtor can take place before fifteen days in case of immovable property and before 7 days in case of movable property from the date of proclamation in the courthouse. A sell can be conducted immediately if the property is of perishable nature.
Adjournment of sale: rule 69
If the judgement-debtor after the issue of proclamation and before sell has paid the amount, or has partly promised to pay on the given date before completion of public order, if there is any justified reason, in those circumstances, court has discretionary power to postponed the sell. If it has been postponed for period of 30 days, fresh proclamation has to be issued and again the process of rule 67, 68 and 69 will follow.
Sell cannot be postponed where judgement-debtor dies before the date of sell or after the issue of proclamation, or on the date of auction.
Restriction to bid: Rule 72-73
A decree-holder cannot, without the express permission of the court, purchase the property sold in execution of his own decree.
A mortgagee of immovable property cannot, without 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 with the execution sale cannot either directly or indirectly, acquire or any attempt to acquire any interest in the property sold in execution.
Rule 78-78 talks about sale of movable property.[xvi] Rules 74 and 75 relates to the sale of agricultural produce and growing crops. Rule 76 covers negotiable instruments and shares. Sale of movable property should be held by public auction. A sale of movable property will not be said aside on the ground of irregularity in publishing or conducting the sale (rule 78).
Rule 82-94 talks about sale of immovable property.[xvii] Rule 83 enables the executing court to postpone sale to enable the judgement-debtor to raise decretal dues by private alienation.[xviii]
Rule 84-85 provide for payment of purchase money by auction-purchaser. Rule 86 talks about cases of default by auction-purchaser in making requisite payment and resale of property. Rule 89-91 and 93 deals with setting aside sale and effect thereof. Rules 92-94 provide confirmation of sale and issuance of sale- certificate. Section 65 declares the effect of sale.[xix]
CHAPTER6: CONCLUSION
From the above discussion it clearly appears that execution is the enforcement of decrees and orders by the process of court, so as to enable the decree-holder to realise the fruits of the decree. The execution is complete when the judgement-creditor or decree-holder gets money or other thing awarded to him by the judgement, decree or order.
Order 21 of the code contain elaborate and exhaustive provision for execution of decrees and order, take care of different type of situation and provide effective remedies not only to the decree-holder and judgement-debtors but also to the objectors and third parties.
A decree can be executed by various modes which include delivery of possession, arrest and detention of the judgement-debtor, attachment of the property, by sale, by appointment of receiver, partition, cross-decrees and cross-claims, payment of money etc.
On exceptional situation, where provisions are rendered ineffective or incapable of giving relief to an aggrieved party, he can file suit in civil court.
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Adv. Siddhant Sharma
Delhi | 500+ Answers
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