mode of execution
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This article is written by M.S. Sri Sai Kamalini, a fourth-year student currently pursuing B.A.LLB (Hons) from School of law, SASTRA. This is an exhaustive article which deals with the various modes of execution under the Code of Civil Procedure.

Introduction

The rules regarding execution can be applied to decrees. The relief is sought out after executing the decrees. The execution of decrees is an essential step in all the proceedings. The process should be carried out carefully so that proper relief can be provided for the affected person and the process must make the proceedings effective and fast. Order XXI of the Code of Civil Procedure deals with the execution of decrees and orders.

Choice of the mode of execution

There are various modes of execution that is acceptable according to Section 51 of the Code of Criminal Procedure. According to this section, the various modes of execution of a decree are:

  • Delivery of any property which is specifically mentioned in the decree;
  • Attachment and sale of property;
  • Sale without an attachment of property;
  • The arrest of the judgment debtor;
  • Detention of the judgment debtor;
  • Appointment of a receiver.

Section 47 of the Code of Civil Procedure provides certain questions to be determined by the Court before executing the decree. The Court has to determine all questions arising between the parties to the suit, like:

  • Execution of decree;
  • The satisfaction of decree;
  • Discharge of the decree;
  • The Court can also determine whether the person is representative of a party or not.

The application of execution has to be filed by the decree-holder and the application can either be an oral application or written application.

Simultaneous execution

Order XXI Rule 21 of the Code of Civil Procedure deals with the simultaneous execution. According to this rule, the court in its discretion may refuse execution against the person and property of the judgment-debtor at the same time.

Discretion of court

Section 38 of the Code of Civil Procedure provides that there are two courts which are competent to execute the decree, they are:

  • The Court which has passed it;
  • The Court where it is sent for execution.

Section 39 of the Code of Civil Procedure provides the rules regarding the transfer of decree to other Courts for execution. According to this Section, the Court can transfer the decree to another Court of competent jurisdiction after the application of decree-holders for various reasons like:

  • The person against whom the decree is passed resides or carries out business within the local limits of the jurisdiction of other Courts.
  • The property of the person is not within the jurisdiction of the Court passing the decree, then the execution order can be transferred to other courts that are competent.
  • If the decree has provided directions to sell the property or deliver the property that is not situated within the jurisdiction of the court, then the execution order can be transferred.
  • The Court will also take other valid reasons into consideration other than these reasons.

The Court on its own motion can transfer the execution order to subordinate courts or other courts of competent jurisdiction. Order XXI Rule 6 provides various procedures that have to be followed when the court desires to transfer the decree to the other court for execution. When there is a transfer, then the documents relating to the case like a copy of decree and certificate for the satisfaction of the decree should be sent to the latter Court as mentioned in Rule 6. Section 40 of the Code of Civil Procedure allows the Court to transfer the case to competent Courts in another State. Section 42 of the Code of Civil Procedure provides the Court where the decree is transferred for execution will have the same powers as if the decree was passed by that Court. 

Modes of executing decrees

There are various ways to execute a decree, the Court has to follow the appropriate rules provided in Order 21 while executing a decree. According to Order XXI Rule 10, an application has to be filed in the Court by the decree-holder if he desires to execute it.

Delivery of property

Delivery of property is one of the most famous modes of executing a treaty. According to Order XXI Rule 79, it is said that when the property that is sold is a movable property of which actual seizure has been made, it shall be delivered to the purchaser. Rule 35 of the Order XXI discusses the rules regarding the decree of immovable property. According to this rule,

  • When the decree is for the delivery of immovable property, the property can be delivered to the person to whom it has been adjudged or to the representative of that person;
  • This delivery has to be made after removing any person bound by the decree who refuses to vacate the property;
  • When the decree is for the joint possession of the immovable property, the possession shall be delivered after affixing the copy of the warrant in a place that is visible;
  • When the person in possession is not providing free access to the property, then the Court can remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession after giving proper warning to the women in that property.

Attachment and sale of property

Section 60 of the Code of Civil Procedure provides the list of properties which are liable to attachment and sale in execution of the decree. The list which is liable to be attached for enforcement of decree according to this Section is:

  • Land;
  • Houses or other buildings;
  • Goods and Money;
  • Banknotes and cheques;
  • Bill of exchanges and promissory notes;
  • Hundis;
  • Government Securities, bonds and other securities for money;
  • Debts; 
  • Shares in the corporation;
  • All other saleable property that belongs to the judgment-debtor which can be movable or immovable.

Section 61 of the Code of Civil Procedure provides a partial exemption of agricultural produce.

Order XXI, Rule 3 of the Code of Civil Procedure provides that if the immovable property is located in more than the local limits of the jurisdiction of one or more courts, then one of the Court can sell and attach the property. According to Order XXI, Rule 13, there has to be certain information in the application for attachment of immovable property. According to Order XXI, Rule 31, the decree for the specific movable property can be executed by:

  • Seizure of the property if it is practicable;
  • Delivery of the property to the person whom it has been adjudged;
  • The detention of judgment-debtor in the civil prison.

Rule 41 of the Order XXI provides power to provide orders to the Court to examine the property of judgment debtor. The court may provide orders to the judgment debtor or officers in the case of firms to submit the relevant books and documents for examination. The value of the property is assessed in order to examine whether it would be sufficient for satisfying the decree. The judgment debtor, the officer in the case of corporations and any other relevant person can be orally examined. According to Section 64 of the Code of Civil Procedure, any private alienation or transfer of property after the attachment, then the transfer would be considered as void. Section 74 of the Code of Civil Procedure provides power to arrest the judgment-debtor if they have obstructed or restricted the decree-holder from obtaining possession of any immovable property. The judgment debtor can be detained in prison for thirty days by the order of the Court.

Arrest and detention

Section 55 of the Code of Civil Procedure deals with various rules regarding the arrest and detention. According to this Section,

  • The judgment-debtor can be arrested at any time of the day and can be brought before the Court.
  • The detention of the Judgment debtor should be in civil prison.
  • No officer can enter the dwelling-house after sunset and before sunrise for making an arrest.
  • The officer should release the judgment debtor once the amount is paid.

Rule 37 of the Order XXI in the Code of Civil Procedure provides discretionary power to the judgment debtor to show cause against detention in prison. According to this rule:

  • Where the application is made for the execution of the decree for the payment of money by the arrest and detention of a judgment-debtor in the civil prison, then the Court provides an opportunity to the judgment debtor to show cause why he should not be sent to the civil prison.
  • The Court provides notice to the judgment debtor to appear before the court on a specified date and provide show cause.
  • The Court will also not provide the notice in certain situations, for example, if the court feels it would delay the process of execution or the judgment debtor might abscond within that time.

According to Rule 38, the warrant for the arrest of the judgment debtor will direct the officer authorised for execution to produce him in the Court within a reasonable time. Rule 39 of Order XXI is an important provision that deals with the subsistence allowance. The decree-holder has to pay a certain sum that is fixed by the Court for the maintenance of the judgment debtor in the civil prison from the time of his arrest until he can be brought before the Court. No judgment debtor can be arrested if the decree-holder has not paid the subsistence allowance. Section 56 of the Code of Civil Procedure provides protection to women and according to this Section, women cannot be arrested in the execution of the decree for money. The scale for the monthly allowance is fixed under Section 57 of the Code of Civil Procedure or else Court can fix an amount that it thinks is sufficient. The payment has to be made in advance to the authorized officer in the beginning and the officer of prison in the later stage. The sums disbursed by the decree-holder for the subsistence of the judgment-debtor in the civil prison and it shall be deemed to be costs in the suit. Rule 40 provides various proceedings that have to be followed after the appearance of judgment debtor after providing the notice. Section 58 of the Code of Civil Procedure deals with the rules regarding the detention and release. According to this section, the judgment-debtor can be detained in the civil  prison:

  • For a period not exceeding three months- When the decree amount is more than a thousand rupees;
  • For a period not exceeding six weeks- When the decree amount is for the payment of a sum of money exceeding five hundred rupees, but not exceeding one thousand rupees.

Section 59 of the Code of Civil procedure provides the judgment debtor can be released on the grounds of illness. 

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Appointment of receiver

Order XL of the Code of Civil Procedures contains various provisions relating to the appointment of a receiver. The Court will also fix appropriate remuneration for the services provided by the receiver. The Court can appoint an impartial person known as a receiver before or after the decree for:

  • Management and protection of the property; 
  • The collection of the rents and profits;
  • The application and disposal of rents and profits;
  • The execution of documents;
  • The Court also provides other powers than the above-mentioned power if it thinks fit.

There are various duties of a receiver that is provided in this Order like:

  • Furnishing any security asked by the Court;
  • Submission of  accounts at periods that he is appointed and in such form as the Court directs;
  • Being responsible for any loss that has occurred to the property by the wilful default or gross negligence of the receiver;
  • Paying the amount due to him as the Court directs.

The Court can also sometimes attach and sell the property of the receiver in order to recover the loss occurred because of him and can give the remaining amount to the receiver after compensating the loss. The Collector can also be appointed as a receiver when the property is land that is paying revenue to the Government or the land in which the revenue has been assigned or redeemed, the Court can appoint a Collector as the receiver with their consent.

Partition

Rule 18 of the Order XX of the Code of Civil Procedure deals with the decree in the suit for partition of property. When the Court passes the decree for partition of any movable or immovable property and if there is any difficulty in partition the Court can pass a preliminary decree which clearly demarcates the different rights of the property. When the decree of partition relates to the estate assessed to the payment of revenue to the Government, the partition can be made by the Collector or any other gazetted officer who is subordinate to the Collector and the gazetted officer has to be appointed by the Collector themselves.

Cross-decrees and cross-claims

Rule 18 of the Order XXI provides rules regarding the execution in cases of cross-decrees. The application of cross decrees can be executed by the Court at the same time when the applications are made to a Court in separate suits for the payment of two sums of money passed between the same parties in various situations; like, if the two sums are equal, then the satisfaction shall be entered upon both decrees. There are also situations if the two sums are unequal then it can be executed only by the holder of the decree for the larger sum and for the amount which remains after deducting the smaller sum. This cannot be applied when the decree-holder in one of the suits is the judgment-debtor in the other and each party files the same character in both the suits. For example, if A holds a decree against B for Rs. 1,000. B holds a decree against A for the payment of Rs. 1,000 in that case then the decree can be executed at the same time and can be satisfied as the amount is equal.

Rule 19 of the Order XXI provides rules regarding the execution in cases of cross-claims. It is considered as a cross-claim when the application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other. There can be satisfied when the amount is equal or if the amount is unequal execution may be only carried out with the person entitled to the higher claim.

Payment of money

Order XXI Rule 1 provides the various methods of paying the money under the decree. According to this rule:

  • The money can be paid by deposit into the Court who is competent to execute the decree;
  • The money can be sent to the Court by money order or by bank deposit;
  • The money can also be paid outside the Court to the decree-holder by the method decided before in writing;
  • The Court can also direct other methods in the decree.

If the money has been paid by postal money order or through a bank, there are various details that have to be mentioned like the number of the original suits, the details of the parties; like, their name, how the money remitted is to be adjusted and name and address of the payer. Order XXI Rule 2 provides various rules relating to decree-holder payment out of Court. The Judgment-debtor has to inform the Court about any payments that are made outside the Court. Rule 30 provides that the decree for payment of money can be executed by the detention of judgment-debtor in prison or by attachment and sale of his property. Rule 32 of the Order XXI provides ways to enforce the decree for specific performance of a contract. The decree for specific performance of a contract if wilfully disobeyed by any parties can be enforced by the detention of judgment-debtor in the civil prison, or by the attachment of property of the judgment debtor, or by both methods. The same procedure has to be followed for the cross-decrees and cross-claims in the mortgage suits.

Injunction

Rule 32 of the Order XXI provides ways to enforce the decree for an injunction. The decree can be executed by the detention of judgment holders in the civil prison or by attachment of property, sometimes both of the processes are carried out to enforce the decree for an injunction. This procedure has to be followed if the person willfully disobeys the decree.

Restitution of conjugal rights

  • Rule 32 of the Order XXI provides ways to enforce the decree for restitution of conjugal rights. The decree for restitution of conjugal rights if wilfully disobeyed by any parties can be enforced by attachment of the property. 
  • Rule 33 of the Order XXI deals with the execution of conjugal rights against the husband and according to this rule, the judgment debtor has to make periodical payments to the decree-holder if the decree is not obeyed within a specified time. The Court can modify the rules regarding the periodic payments from time to time and in certain situations, it can also suspend the payment. Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money.

Execution of document

Rule 34 of the Order XXI deals with the various procedures that have to be followed for the execution of the document. According to this rule,

  • When the judgment debtor disobeys the decree of execution of documents, the decree-holder has to prepare a draft of the document and has to present it before the Court;
  • The Court will present the draft to judgment debtor for him to raise any objects if any present and also Court will fix a particular time within which the judgment debtor can make his objection;
  • The Court shall make orders to approve or alter the draft after receiving objections from the judgment holder;
  • The decree-holder shall deliver a copy of the draft to the Court after making any alterations as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in force; 
  • The Judge or such officer as may be appointed in this behalf shall execute the document so delivered;
  • The Court or officer authorized by the Court has to register the document if the registration of the document is required by the law. If the registration is not required but still the decree-holder wishes to register the document the Court has to make necessary orders;
  • The Court may make orders regarding the expenses of the registration.

Endorsement of the negotiable instrument

Rule 51 deals with the endorsement of a negotiable instrument. According to this rule, the attachment of the negotiable instrument can be completed by the actual seizure of the instrument if it is not deposited in a Court and it is not in the custody of a public officer. The negotiable instrument should be brought into Court and is kept in the custody of Court until further orders of the Court.

Attachment of rent, mesne profits, etc.

According to Rule 42, where a decree directs for an inquiry regarding the rent or mesne profits or any other matter, then the property of the judgment-debtor may be attached for the amount due similar to the case of an ordinary decree for the payment of money.

Attachment of debt, share and other property that is not in possession of Judgment debtor

The attachment of the debt that is not in the possession of the judgment debtor can be made by a written order prohibiting:

  • In the case of the debt, the credit or from recovering the debt and the debtor is prohibited from making payment  until the further order of the Court; 
  • In the case of the share, the person in whose name the share can be prohibited from transferring the same or receiving any dividend; 
  • In the case of the other movable property, the person in possession is prohibited to give the same from giving it over to the judgment-debtor.

Liability of surety

Section 145 of the Code of Civil Procedure provides rules regarding the enforcement of liability of surety. According to this Section, any person who has provided security or has given a guarantee for the performance of the decree or any part of the decree, for the restitution of any property that is taken in execution of the decree and for payment of any money in the decree is considered as the surety. The surety is liable in the same manner as he is personally liable and his property that is attached can also be sold for recovering the loss of decree-holder. The surety is also considered as a party to the suit according to Section 47 of the Code of Civil Procedure.

Enforcement of decree against the legal representative

Section 52 of the Code of Civil Procedure deals with the enforcement of decree against the legal representative. The legal representative of a deceased can also be considered as a party in certain situations. According to this Section, when the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property. Section 53 of the Code of Civil Procedure deals with the liability of the ancestral property. According to this Section, the ancestral property in respect of which the decree is passed is considered as the property of the deceased if it is in possession with the son or any other descendant who is responsible for payment of debt under the Hindu law.

Decree against corporation

According to Rule 76, where the property to be sold is a negotiable instrument or a share in a corporation, the Court instead of providing directions for the sale to be made in public auction can authorize a broker to sell such an instrument or share. Rule 32(2) of the Order XXI provides that the decree of injunction or specific performance passed against the corporation, then the decree may be enforced by the attachment of the property of the corporation or by the detention of the directors or important officers of the corporation in the civil prison.

Decree against firm

Rule 50 provides various provisions relating to the execution of a decree against the firm. According to this rule, When the decree is granted against a firm the execution may be granted against,

  • Any property of the partnership;
  • Against any person who is adjudged to be the partner of the firm;
  • Any person who is considered as a partner and is individually served with the summons and has failed to appear.

Attachment of decree

Rule 53 of Order XXI deals with the attachment of a decree. According to this rule when the property to be attached is a decree, then the attachment can be made by the order of Court which passed the decree. There are certain situations when the decree is passed by other Court and the order is sent to another Court for enforcement then the court which passes the decree has to provide a notice to the latter Court. The Court after the application of the decree-holder sought to be executed by the attachment of another decree, the Court making an order of attachment under this rule shall give notice to the judgment-debtor who is bound by the decree that is attached.

Payment of icons or currency notes

Rule 56 of Order XXI of the Code of Civil Procedure deals with the provisions where the property attached is current coin or currency notes, the Court at any time during the continuance of the attachment, can direct that such coin or notes, or a part thereof if it is sufficient to satisfy the decree, to be paid over to the party entitled under the decree.

Conclusion

There are various methods of execution of a decree under the Code of Civil Procedure. It is the duty of the Court to assess the facts of each and every case and provide appropriate relief to the decree-holder without any delay. The Court has to follow the procedures which are provided under the Orders of the Code of Civil Procedure before executing a decree and choosing the appropriate mode of execution.

References


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