WORK SHOP –III

IN VIZIANAGARAM
UNIT ON 24.06.2017
 WORK SHOP- III
IN VIZIANAGARAM UNIT
ON 24.06.2017

Ex-Officio Chair Person of Work Shop

Hon’ble Sri Justice

G. SHYAM PRASAD,
Administrative Judge.-
***
 INDEX
Jurisdiction of the Court
Sri. B.Sadhu Babu, Senior Civil Judge,
1 1-16
Parvathipuram.
Smt. M Venkata Seshamma, Judicial Magistrate of
2 17-24
First Class, Special Mobile Court, Vizinagaram
Smt. G Spandana, Junior Civil Judge,
3 25-28
Cheepurupalli
Smt. V Lakshmi Rajyam, Additional Junior Civil
4 29-40
Judge, Vizianagaram

Attachments
Sri. Shaik Abdul Shariff
1 41-49
Principal Junior Civil Judge, Vizianagaram.
Sri. G. Ganga Raju, Principal Junior Civil Judge,
2 50-63
Parvathipuram

3 Smt. Rajyalakshmi, Senior Civil Judge, Bobbili 64-66

Claim Petitions

1 Ms. K.Sailaja, Junior Civil Judge, Salur 67-77

Sri. E. Bhima Rao, Judge, Family Court-cum- III

2 78-87
Additional District Judge, Vizianagaram
Sri. P Nageswara Rao, Junior Civil Judge,
3 88-99
Gajapathinagaram

Limitation for several applications during Execution

1 Ms. P. Pradeepa, Junior Civil Judge, Kothavalasa 100-108

2 Sri. K. Rambabu, Senior Civil Judge, Vizianagaram 109-112

Sri. Ch. Madhu Babu, Additional Junior Civil Judge,

3 113-126
Parvathipuram
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JURISDICTION OF THE COURT IN EXECUTION OF THE DECREE

By
B.SADHUBABU.
Senior Civil Judge ,
Parvathipuram,
Vizianagaram District

EXECUTION- MEANING :-

The term ―Execution‖ has not been defined in the Code of Civil

Procedure. The expression ―Execution‖ simply means the process for

enforcing or giving effect to the judgment of the court.

INTRODUCTION

Execution is the enforcement of a decree by a judicial process

which enables the decree-holder to realize the fruits of the decree and

judgment passed by the competent Court in his favour. The execution is

complete when the decree-holder gets money or other thing awarded to

him by the judgment, decree or order of the Court.

Execution is the last stage of any civil litigation.

There are three stages in litigation-

a) Institution of litigation,

b) Adjudication of litigation,

c) Implementation of litigation.
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Implementation of litigation is also known as ―Execution‖.

A decree will be executed by the court which has passed the

judgment. In exceptional circumstances, the judgment will be implemented

by other court which is having competency in that regard. Execution

enables the decree-holder to recover the fruits of the judgment.

JURISDICTION

Jurisdiction plays a dominant and significant role in the functioning

of courts. There can be no court without jurisdiction.

JURISDICTION OF THE COURT - DEFINITION:

The term ―Jurisdiction‖ also has not been defined in the code of Civil

of Procedure. We can define it as ―The authority given by law to a court to

try cases and rule on legal matters within a particular geographic area

and/or over certain types of legal cases‖ Jurisdiction is the power of courts

to inquire into facts, apply the law, make decisions, and declare judgment.

Simply stated, it is the official power of the courts to make legal decisions

and judgments.

Jurisdiction of a court is of various types, namely,

 Territorial Jurisdiction: Territorial jurisdiction is the power of

the court to render a judgment concerning events that have

occurred within a well-defined territory.

 Pecuniary Jurisdiction: Pecuniary jurisdiction sets the pecuniary

limits on the jurisdiction of a court. Pecuniary literally means

'related to money'
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Pecuniary jurisdiction to execute the decree:

―If the value of the decree is within the pecuniary jurisdiction of

the Court, then that Court is entitled to sell the property even if

the value of that property is beyond the pecuniary jurisdiction of

that Court‖

Deshabandhu Gupta V/s. N. L. Anand 1994(1) SCC 131

 Subject matter Jurisdiction: The authority of a court to decide

a particular type of case is called subject- matter jurisdiction. That
subject matter has to be within the pecuniary limits of the court.

 Personal Jurisdiction: Personal jurisdiction is the power of a

court to render a judgment against a particular person.

Personal Jurisdiction in execution:

A decree is executable not only against the Judgment debtor but
also his legal representative or against the transferee of the
decree. (Section 49, 50, 52 CPC)

POWERS OF COURT TO ENFORCE EXECUTION :

a. By delivery of any property specifically decreed ;
b. By attachment and sale or by sale without attachment of any
property ;
c. By arrest and detention in prison ;
d. By appointing a receiver ; or
e. In such other manner as the nature of the relief granted may
require
(Section 51 CPC)
 4

Court which may execute a decree. :-

Section 38 of the Code specifies that, a decree may be executed

either by the Court who passed it or by the Court to which it is sent for

execution.

Primarily the Court which passed the decree or order is the

executing Court.

Definition of court which passed a decree:

Section 37 defines the expression ‗Court which passed a decree‘ which is

inclusive one. It includes the following courts also

a) Where the decree to be executed has been passed in the exercise

of appellate jurisdiction, the court at first instance.

b) Where the court at first instance has ceased to exist or to have

jurisdiction to execute it, the court which if the suit wherein the

decree was passed was instituted at the time of making the

application for execution of the decree , would have jurisdiction to

try such suit.

According to the explanation given under this section, merely

because the jurisdiction of the Court which has passed the decree is

transfer to another Court due to transfer of territorial area, the jurisdiction

to execute the decree passed by such a Court is not ceased. However, the

Court to whom the transfer of territorial area is made, will also have a

jurisdiction to conduct the execution of decree or order.

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Transfer of Decree for execution:

According to section 39 of CPC, the Court which passed a decree

may, on the application of the decree-holder, send it for execution to

another Court of competent jurisdiction.

1. On application of decree holder the court which passed a decree may

transfer to another court of competent jurisdiction for execution of

the decree.

a. If the decree is passed against the a person who resides

voluntarily or personally within the jurisdiction of such other

court.

b. If such person does not have properties within the jurisdiction

of the court which passed the decree sufficient to satisfy such

decree but has property within the local limits of the jurisdiction

of such other court.

c. Of the decree directs the sale of delivery of immovable property

situated outside the local limits of the jurisdiction of the court

which passed it.

d. If the court which passed the decree for any reason considers

that the decree should be executed but such other court shall

record in writing and transfer the decree.

2. The court which passed the decree may of its own motion send it for

execution to another subordinate court of competent jurisdiction.

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3. For the purposes of this section, a Court shall be deemed to be a

Court of competent jurisdiction if, at the time of making the

application for the transfer of decree to it, such Court would have

jurisdiction to try the suit in which such decree was passed

4. Nothing in this section shall be deemed to authorize the court which

passed a decree to execute such decree against any person or

property located outside the local limits of its jurisdiction.

Transfer of decree to court in another state:

Section 40 of the code clearly says Where a decree is sent for

execution in another State, it shall be sent to such Court and executed in

such manner as may be prescribed by rules in force in that State.

Result of execution proceedings to be certified: (Section 41 of CPC)

On transfer of any decree to another court, upon execution of such

decree the court shall certify to the court which passed the decree or if the

former court fails to execute the same the circumstances attending such

failure also should be certified.

Powers of the transferee Court in execution of Decree : (Section

42 of CPC)

On perusal of Section 42 of CPC,

The transferee Court shall have the same powers in executing a

decree as of the court which passed it and It can punish the persons who

disobeys its orders or obstructing the execution of the decree in the same

manner as if it had passed the decree.

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Apart from that the transferee court can exercise the following powers
a) Power to send the decree for execution to another Court under

section 39;

b) Power to execute the decree against the legal representative of the

deceased judgment-debtor under section 50;

c) Power to order attachment of a decree.

While exercising the above mentioned the transferee court shall

send a copy to the court which passed the decree.

But the transferee court will not have the below mentioned powers

a) Power to order execution at the instance of the transferee of the

decree;

b) In the case of a decree passed against a firm, power to grant leave

to execute such decree against any person other than such a person

as is referred to in clause (b), or clause (c), of sub-rule (1) of rule 50

of order xxi.]

Execution of Decrees passed by the Revenue courts: (Section 44 of

CPC )

While executing the decrees passed by Revenue courts in places to

which the Civil Procedure code may not extend, The state Government

may, by notification in the Official Gazette declare that these decrees to

which the code do not extent may be executed in the state or any part of

India as if they had been passed in that State.

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Section 44 A. Execution of decrees passed by Courts in

Reciprocating territory:

"Reciprocating Territory" is defined in explanation 1 to Section

44A of Civil Procedure Code as: "Any country or territory outside India

which the Central Government may, by notification in the Official Gazette,

declare as a reciprocating territory."

(1) Where a certified copy of decree of any of the superior Courts

of any reciprocating territory has been filed in a District Court, the

decree may be executed in India as if it had been passed by the

District Court.

(2) Together with the certified copy of the decree shall be filed a

certificate from such superior Court stating the extent, if any, to

which the decree has been satisfied or adjusted and such certificate

shall, for the purposes of proceedings under this section, be

conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the

certified copy of the decree apply to the proceedings of a District

Court executing a decree under this section, and the District Court

shall refuse execution of any such decree, if it is shown to the

satisfaction of the Court that the decree falls within any of the

exceptions specified in clauses (a) to (f) of section 13.

According to Order 21 Rule 8 the district court can send the

said decree for execution to any of its subordinate court of competent

jurisdiction.
 9

Execution of decrees outside India: (Section 45 of CPC)

So much of the foregoing sections of this Part as empowers a Court

to send a decree for execution to another Court shall be construed as

empowering a Court in any State to send a decree for execution to any

Court established by the authority of the Central Government outside India

to which the State Government has by notification in the Official Gazette

declared this section to apply.

Questions to be determined by the Court executing decree.-

( Sec.47 of CPC)
1. All questions arising between the parties to the suit in which the

decree was passed, or their representatives, and relating to the

execution, discharge or satisfaction of the decree, shall be

determined by the Court executing the decree and not by a

separate suit.

2. Omitted by Act 104 of 1976. effective from 1-2-1977

3. Where a question arises as to whether any person is or is not the

representative of a party, such question shall, for the purposes of

this section, be determined by the court

Explanation I: For the purposes of this section, a plaintiff whose

Suit has been dismissed and a defendant against whom a suit has

been dismissed are parties to the suit.

Explanation ll:
a) For the purposes of this section, a purchaser of property at a

sale in execution of a decree shall be deemed to be a party to

the suit in which the decree is passed; and

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b) All questions relating to the delivery of possession of such

property to such purchaser or his representative shall be

deemed to be questions relating to the execution, discharge or

satisfaction of the decree within the meaning of this section.

Conditions necessary for Section 47:-

1. Question must relate to execution/discharge/satisfaction of a
decree.
2. Must arise between parties to suit or their representatives.
3. Must be for determination of such questions by the court

executing the decree.

In other words, this section authorizes the court executing a decree

to decide all questions arising between the parties and relating to

execution, discharge or satisfaction of a decree.

The Property attached in execution of decrees of several Courts :

(Section 63 of CPC)

(1) Where property not in the custody of any Court is under attachment

in execution of decrees of more Courts than one, the Court which

shall receive or realize such property and shall determine any claim

thereto any objection to the attachment thereof shall be the Court of

highest grade, or, where there is no difference in grade between

such Courts, the Court under whose decree the property was first

attached.

(2) Nothing in this section shall be deemed to invalidate any proceeding

taken by a Court executing one of such decrees.

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Stay of execution:

As per Order XXI Rule 26 the executing Court may stay the execution

proceeding, the Court which passes the decree can stay the proceeding on

application of judgment-debtor enabling him to file the appeal and to bring

the stay to the execution proceeding. Where the suit is pending in any

Court decree-holder and judgment-debtor in such circumstances if the

Court is found the rights of parties are required to be adjudicated by the

Court where such suit is pending and unless the rights are to be

determined, the decree cannot be executed in such circumstances, Court

can stay the execution proceeding. The appellate Court can also grant the

stay to the execution proceeding.

Power of executing Court to decide question arising in execution—

Section 47 of the Code of Civil Procedure confer wide powers on the

executing Court to decide all question arising between the parties to the

suit in which the decree was passed, or their representatives, and relating

to the execution, discharge or satisfaction of the decree. Such questions

must be decided by the executing Court and no separate suit it

maintainable for the purpose.

Dispute relating to the different immovable properties covered by

the Jurisdiction of several courts :

Section 17 of Civil procedure code facilitates a person to file single

suit, in any one of such courts and obtain a decree. In such decrees he

can file execution petition for sale in any of such courts as per Rule 3 of

Order XXI of CPC.

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Execution of decree pending appeal :

The filing of an appeal from a decree is, by itself, no bar to its

execution, and execution may proceed unless it is stayed by an order of

the Appellate Court or the Court which passed the decree (vide Order XLI,

Rules 5 and 6). It should be noted, however, that when an order is made

for the sale of immovable property during the tendency of the appeal, and

the judgment-debtor applies for stay of the sale, the Court ordering the

sale is bound to stay it, though it can impose much terms as to security or

otherwise as it thinks fit [Order XLI, Rule 6(2)].

Whether Executing Court can go behind the decree :-

The executing Court has no power to entertain any objection as to

the validity of the decree or as to the legality or correctness of the decree.

The reason underline the above rule is that, although a decree may not be

according to law, it is binding and conclusive as between the parties to the

suit, unless it is set aside in appeal or revision. It is for the same reason

that, the Court executing a decree cannot alter, vary or add to the terms of

the decree even with the consent of the parties.

In the case of V. Ramswami Vs T.N.V.Kailash Theyar reported in

AIR 1951 S.C,189 (192), it was observed that, ''the duty of an executing

Court is to give effect to the terms of the decree. It has no power to go

beyond its terms. Though, it has power to interpret the decree, it cannot

make a new decree for the parties under the guise of interpretation ''. It

has been held by the Hon‘ble Supreme Court in Karan Sing Vs Chaman

Pawan reported in (1955) 1 SCR 117, that a decree passed by a Court

 13

without jurisdiction is a nullity, and its validity can be set up whenever and

wherever, it is sought to be enforced or relied upon, including the stage of

its execution.

In Topanmal Vs M/s Kundomal Gangaram reported in AIR

1960, SC 388, it was held by the Hon‘ble Supreme Court that, an

executing Court must take the decree as it stands. An executing Court

cannot go behind the decree. It can neither add something in the decree

already passed, nor alter the decree. It cannot grant relief which is not

contemplated by the decree. A Court executing a decree cannot go behind

the decree. The court must take the decree as it finds it. It cannot

entertain any objection that, the decree is incorrect in law or on facts,

because until the decree is set aside by an appropriate proceedings in

appeal, or in revision, a decree even if erroneous, is binding between the

parties. It has to see the decree as it is and execute it in accordance with

the terms therein. It cannot question the correctness or legality of the

directions. However, if the court which passed the decree has no inherent

jurisdiction, the decree is incapable of execution. Dealing with this

question, the Hon‘ble Supreme Court observed in Karan Singh V.

Chaman Paswan that a decree passed by a court without jurisdiction is a

nullity and that its invalidity could be set up wherever and whenever it is

sought to be enforced, whether in execution or in collateral proceedings.

However, where the defect in jurisdiction was of a kind that fell

within the saving of S.21 of the Code or S.11 of the Suits Valuation Act, it

could not be raised except in the manner and subject to the conditions

mentioned therein. This rule holds good only between parties to the decree
 14

and their representatives. The Court has no power to entertain any

objection as to the validity of the decree that, it was obtained by fraud, or

as to the legality or correctness of the decree, e.g. An objection that the

decree sought to be executed was passed against a wrong person; or that

it was passed against a lunatic or a minor not properly represented; or that

the court which passed it, had no jurisdiction to do so. The reason being

that a decree, though not according to law, is binding and conclusive

between the parties until it is set aside, either in appeal or revision. For the

same reason, the court executing a decree, cannot alter, vary or add to the

terms of the decree even by the consent of the parties.

A decree passed against an unregistered firm in violation of S.69(2)

of the Partnership Act is not a nullity and cannot be questioned in

execution. It is not open to the executing court to go into the validity of an

order amending the decree. Broadly speaking, the distinction is one

between a plea that the decree sought to be executed is a nullity and a

plea that, it is invalid, improper or erroneous. It has been held that, the

award of mesne profit for more than 3 years is in contravention of O.20

R.12, and is a nullity and that the objection can be taken in execution. An

objection to the execution of a decree passed on a rent control order is

admissible. The executing court cannot entertain an objection that the

personal decree passed against the defendant before proceeding against

the properties is erroneous. It is also not open to the executing Court to

enquire whether the property charged by the decree was not available on

the date of decree. Also, the objection based on the absence of territorial

jurisdiction could be taken in execution, unless it is apparent on the face of

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the decree. However, when on the allegations in the plaint, the suit is

beyond the pecuniary jurisdiction of the Court, a decree passed by it is a

nullity and that objection can be raised in execution. If the decree is free

from ambiguity, the court of execution is bound to execute it whether it be

right or wrong.

But though a court executing a decree cannot go behind the decree,

it is quite competent to construe the decree whether the terms of the

decree are ambiguous, and to ascertain its precise meaning, for, unless

this is done, the decree cannot be executed. But it cannot, under the guise

of interpretation, make a new decree for the parties. The construction of a

decree must be governed by the pleadings and the judgment. But when a

particular construction has been put upon a decree in former execution

proceedings, it is not open to the court to treat that construction as

erroneous in a subsequent application.

Nullity of Decree:
Where the decree is a nullity the objection of the judgment debtor

that the decree is a nullity because it was passed against a dead

person, without bringing his legal representatives on the record, is

an objection which can be entertained by the executing court, for in

such a case if the objection is proved, there is no executable decree

at all. Court can interfere only if the decree is null and void without

jurisdiction. ( Dashrath Singh Vs. State of Punjab, 2007(4)

Mh.LJ. 361 (SC) )

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Ambiguous Decree:
Where the decree is ambiguous. A decree instead of meaning one

thing may mean two or more different things. In such a case it

is the duty of the executing court to go behind the decree and seek

to ascertain from the judgment and pleadings, the true implication of

the decree. This is necessary to enable the executing court to

execute the decree.

Decree made without jurisdiction:

Where the decree has been made by a court without jurisdiction,

i.e., in respect of territorial or pecuniary jurisdiction or in respect of

the judgment debtor‘s person. An objection based on the ground of

jurisdiction can be entertained by the executing court for, if the

decree has been passed without jurisdiction by a court, there is no

executable decree.

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 realize the fruits of the decree. The code of civil

procedure clearly elaborated on the jurisdiction of the Courts in execution

of the decrees passed by the states within in the India and outside the

country. The executing courts by cautious exercise of their respective

jurisdictions can determine the objections that meddle with the execution

summarily, at the earliest, and thereby can curb the delay in enforcement

of the decrees.

Senior Civil Judge,

Parvathipuram.
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WORK SHOP-3

TOPIC: EXECUTION AND JURISDICTION

OF THE COURT

Submitted by

SMT.M.VENKATA SESHAMMA,
Judicial Magistrate of I class,
Special Mobile Court,
Vizianagaram.
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JURISDICTION OF COURTS IN EXECUTING DECREES

The expression “execution” signifies the enforcement or giving effect

to a judgment or order of a court of justice. In other words execution is

enforcement of decrees and orders by the process of the courts to enable

the decree holder to realize the fruits of the decree.

Sections 37 to 45 of the Civil Procedure Code deals with jurisdiction of

the executing courts. Section 37 provides that a decree may be executed

either by the court which passed it or by the court to which it is sent for

execution. Sec.37 defines the execution “court which passed it decree”,

while sections 39 to 45 provide transfers of the execution of the court by the

court which passed the decree to another court, lay down condition for such

transfer and also deal with the powers of executing court. So all these

sections has to be read together.

Section 37 defines the expression “court which passed a decree”. The

section enlarges the scope of the expression “court which passed a decree”

with the object of giving greater facilities to a decree-holder to realize the

fruits of the decree passed in his favour. The following courts fall within the

said expression of 'Court which passed a decree' :

(i) The court of first instance which actually passed the decree;

(ii) The court of first instance in case of appellate decrees;

(iii) Where the court of first instance has ceased to exist, the court
which would have jurisdiction to try the suit at the time of
execution; and
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(iv) Where the court of first instance has ceased to have jurisdiction

to execute the decree, the court which at the time of

execution would have had jurisdiction to try the suit.

As per section 38 of the Code, a decree may be executed either by the

court which passed it, or by the court to which it is sent for execution. A

court which has neither passed a decree, nor a decree is transferred for

execution,cannot execute it.

Where the court of 1st instance as ceased to exist or ceased to have

jurisdiction to execute decree, the decree can be executed by the court

which at the time of making that execution application would have

jurisdiction in the matter. In “Merla Ramanna VS. Nallapuraju”( AIR 1956

SC 87), the Hon’ble Apex Court held that “.... it is settled law that the court

which actually passed the decree does not lose its jurisdiction execute it, by

reason of the subject matter thereof being transfer subsequently the

jurisdiction of another court”.

TRANSFER OF DECREE FOR EXECUTION

Section 39 provides for transfer of decree by the court which has

passed it and lays down the conditions there for as below :

(i) The judgment-debtor actually and voluntarily resides or carries

on business, or personally works for gain, within the local

limits of the jurisdiction of the such court; or

(ii) The judgment-debtor does not have property sufficient to satisfy

the decree within the local limits of the jurisdiction of the

court which passed the decree but has property within the

local limits of the jurisdiction of the such other court; or

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(iii) The decree directs the sale or delivery of immovable property

situate outside the local limits of the jurisdiction of the court

which passed it; or

(iv) The court which passed the decree considers it necessary for any

other reason to be recorded in writing that the decree should

be executed by such other court.

The provisions of Section 39 are, however, not mandatory and the

court has discretion in the matter which will be judicially exercised by it.

The decree-holder has no vested or substantive right to get the decree

transferred to another court. The right of the decree holder is to make an

application for transfer which is merely a procedural right. By the

Amendment Act of 1976, sub-section(3) has been added to Section 39. It

clarifies that the transferee court must have pecuniary jurisdiction to deal

with the suit in which the decree was passed. Likewise, sub-section (4) of

Section 39, as added by the Code of Civil Procedure (Amendment) Act,

2002, further clarified that the court passing the decree has no power to

execute such decree against a person or property outside the local limits of

its territorial jurisdiction. This is inserted as per guidelines of Hon'ble Apex

Court in “Salem Advocate Bar Association, Tamilnadu Vs Union of India”(AIR

2003 SC 189). But section 39(4) does not dilute the other provisions on

compliance of conditions stipulated in those provisions. Thus the provisions

such as Order XXI Rule 3 or Order XXI rule 48 which provide differently

would not be effected by Section 39(4).

EXECUTION OF FOREIGN DECREES IN INDIA:SECTION 43 TO 44-A

A combined reading of Sections 43 to 44-A shows that Indian courts

have power to execute the decrees passed by (1) Indian courts to which the

provisions of the Code do not apply; (2) the courts situate outside India
 21

which are established by the authority of the Central Government;

(3) revenue courts in India to which the provisions of the Code do not apply;

and (4) superior courts of any reciprocating territory.

EXECUTION OF INDIAN DECREES IN FOREIGN TERRITORY

Section 45 provides for the execution in foreign territory of the

decrees passed by Indian courts in certain circumstances.

The Code does not prevent a decree-holder from executing a decree

simultaneously at more than one place against the property of the

judgment-debtor. But such power should be exercised sparingly and in

exceptional cases after issuing notice to the judgment-debtor.

PROCEDURE IN EXECUTION

Where a decree is sent for execution to another court, the court which

passed the decree shall send a decree to such court with (i) a copy of the

decree; (ii) a certificate of non-satisfaction or part satisfaction of the

decree; and (iii) a copy of an order for the execution of the decree, or if no

such order is passed, a certificate to that effect. The court executing the

decree, on receiving the copies of the decree and other certificates, shall

cause the same to be filed without further proof. Such court shall have the

same powers in executing the decree as if it had been passed by itself. Such

court shall certify to the court which passed the decree the fact of such

execution or the circumstances attending its failure to execute it. Where the

court to which the decree is sent for execution is a district court, it may be

executed by itself or transferred by it to any subordinate court of competent

jurisdiction. Where such court is a High Court, the decree shall be executed

as if it had been passed by itself in the exercise of its original jurisdiction.

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Where a decree is sent for execution in another State, it shall be executed

by such court and in such manner as may be prescribed by rules in force in

that State. Where immovable property forms one estate or tenure and is

situate within the territorial jurisdiction of two or more courts, any of such

courts has jurisdiction to attach and sell the whole of such estate or tenure.

Once a court which has passed a decree transfers it to another

competent court, it would cease to have jurisdiction and cannot execute the

decree. It is only a transferee court to which an application for execution

would lie. The limitation is to the extent of the transfer and not in respect of

other matters.

Once a decree is transferred for execution to another court, the

transferee court shall have all powers to execute the decree as if it had been

passed by the transferee court itself. After the transfer of a decree, it is the

transferee court which will decide all questions arising in execution

proceedings. Its jurisdiction remains till it certifies to the transferor court of

the execution of the decree.

POWERS OF EXECUTING COURT

Section 42 of the Code expressly confers upon the court executing a

decree sent to it the same powers as if it had been passed by itself. It is

thus power and duty of the executing court to see that the defendant gives

the plaintiff the decree directed and nothing more or nothing less.

At the same time, the Code requires that the court executing the

decree does not exercise power in respect of the matters which could be

determined only by the court which passed the decree. To put it differently,

the powers to be exercised by the executing court relate to procedure to be

followed in execution of a decree and do not extend to substantive rights of

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the parties. The executing court cannot covert itself into the court passing

the decree.

Section 46 of the Code deals with Precepts.

Precepts:-

1)Upon the application of the decree-holder the Court which passed the

decree may, whenever it thinks fit, issue a precept to any other Court

which would be competent to execute such decree to attach any

property belonging to judgment-debtor and specified in the precept.

2) The Court to which a precept is sent shall proceed to attach the

property in the manner prescribed in regard to the attachment of

property in execution of a decree;

Provided that no attachment under a precept shall continue for more

than two months unless the period of attachment is extended by an order of

the Court which passed the decree or unless before the determination of

such attachment the decree has been transferred to the Court by which the

attachment has been made and the decree-holder has applied for an order

for the sale of such property.

Section 47 provides that all questions arising between parties in the suit in

which the decree was passed or their representatives and relating to the

execution, discharge or satisfaction of the decree, shall be determined by

the Court executing the decree and not by a separate suit.

Where a question arises whether any person is our is not the

representative of a party, such question shall for the purpose of this section

be determined by the Court. All questions relating to the delivery of

possession of such property to such purchaser or his representative shall be

 24

deemed to be questions relating to the execution are within the meaning of

this section.

O0o0O

THANKYOU
 25

TOPIC : JURISDICTION OF COURTS

WORK SHOP TO BE HELD ON : 24.06.2017.

Submitted by

Smt.G.Spandana,

Junior Civil Judge,

Cheepurupalli.

Jurisdiction
Jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning
"to speak") is the practical authority granted to a formally constituted legal body or
to a political leader to deal with and make pronouncements on legal matters and,
by implication, to administer justice within a defined area of responsibility. The
term is also used to denote the geographical area or subject-matter to which such
authority applies.
Jurisdiction Of Civil Courts In India

Jurisdiction of civil courts can be divided on two basis.

Pecuniary/Monetary

Territorial / Area Wise Classification

Pecuniary/Monetary Jurisdiction

Pecuniary jurisdiction of the court divides the court on a vertical basis.

At present the pecuniary jurisdiction of the courts is as follows:

. Suits amounting to Rs.1.00 to Rs.3,00,000/- lie before subordinate courts.
. Suits amounting to Rs.3,00,000/- to Rs.15,00,000/- lie before Sr. Civil Judge
Courts
· Suits amounting to Rs.15,00,000/- and above lie before District courts.

It is very important to note that the amount of pecuniary jurisdiction is

different for all High Courts. This limit is decided by respective High Court Rules.

In many states High court has no pecuniary jurisdiction. All civil suits go
before District Courts, and only appeal lies before High Court

Territorial Jurisdiction:
Territorial Jurisdiction divides the courts on a horizontal basis.
How Is Territory Decided?:

Territory of a court is decided after taking into account several factors.

They are:
In Case Of Immovable Property:
 26

If the suit is with regard to recovery, rent, partition, sale, redemption,

determination of right of immovable property, it shall be instituted in the court
within the local limits of whose jurisdiction the property is situated.

Immovable Property Situated Within The Jurisdiction of Different Courts:

In such a case the suit may be instituted in any court within the local
limits of whose jurisdiction any portion of the property is situated.

In Case Of Dispute Between Two Or More Persons With Respect To Movable

Property, Business Or Any Other Wrong Done:

Where a wrong has been caused to a person, or any damage has been
caused to a movable property, then the suit may be instituted either,
· In the place, where wrong or damage has been caused, or
· In the place, where defendant (the person who caused the loss) resides.
Where there is a dispute in business, agreement or any other kind of civil dispute,
except matrimonial matter, then the suit may be instituted either,
· In a place, where the defendant resides, or carries on business, or
· In a place, where the cause of action has arisen, i.e. where the dispute or wrong
took place

In Case Of Matrimonial Dispute:

Where a dispute arises between Husband and wife inregard to their

marital life then the case may be filed either:
· In the place where marriage was solemnized, or ;
· In the place, where opposite party is residing, or;
· In the place, where Husband and Wife last resided together, or;
· In the place, where person filing the case is residing, provided that.
Opposite party has not been heard of as alive for the last Seven years, or

Opposite party resides outside the jurisdiction of Hindu Marriage Act 1955
Courts may also have jurisdiction that is exclusive, or concurrent (shared). Where a
court has exclusive jurisdiction over a territory or a subject matter, it is the only
court that is authorized to address that matter. Where a court has concurrent or
shared jurisdiction, more than one court can adjudicate the matter.
Section 9 of CPC deals with the jurisdiction of civil courts in India. It says that the
courts shall (subject to the provisions herein contained) have jurisdiction to try all
suits of a civil nature excepting suits of which their cognizance is either expressly
or impliedly barred.

a) suit of civil nature

Meaning:-a suit is of a civil is of a nature if the principal question therein relates to

the determination of a civil right and enforcement thereof. It is not the status of the
parties to the suit, but the subject matter of it which determines whether or not the
suit is of a civil nature

Nature and scope- the expression “suit of a civil nature” will cover private rights
and obligations of a citizen. A suit in which the principal question relates to caste
or religion is not a suit of a civil nature. But if the principal question in a suit is of a
 27

civil nature (the right to property or to an office) and the adjudication incidentally
involves the determination relating to a caste question or to religious rights and
ceremonies, it does not cease to be a suit of a civil nature and the jurisdiction of a
civil court is not barred.

The word „nature‟ has defined as „the fundamental qualities of a person or thing;
identity or essential character, sort;kind;charachter‟. It is thus wider in content. The
word „civil nature‟ is wider that the word „civil proceeding‟. The section would,
therefore, be available in every case where the dispute was of the characteristics of
affecting one‟s rights which are not only civil but of civil nature.”

iv. Test: a suit in which the right to property or to an office is contested is a suit of
a civil nature, notwithstanding that such right may depend entirely on the decision
of a question as to religious rites or ceremonies.
v. Suits of civil nature: illustrations- the following are suits of a civil nature.
1. suits relating to rights to property;
2. suits relating to rights of worship;
3. suits relating to taking out of religious procession;
4. suits relating to right to share in offerings;
5. suits for damages for civil wrongs;
6. suits for specific performance of contracts or for damages for breach of
contracts;
7. suits for specific relief‟s;
8. suits for restitution of conjugal rights;
9. suits for dissolution of marriages;
10. suits for rent;
11. suits for or on account;
12. suits for rights of franchise;
13. suits for rights to hereditary offices;
14. suits for rights to Yajmanvritis;
15. suits against wrongful dismissal from service and for salaries, etc.
vi. suits not of civil nature- illustrations- the following are not suits of a civil
nature:
1. suits involving principally caste questions;
2. suits involving purely religious rites or ceremonies;
3. suits for upholding mere dignity or honor;
4. suits for recovery of voluntary payments or offerings;
5. suits against expulsions from caste, etc.

b. cognizance not barred

as stated above, a litigant having a grievance of a civil nature has a right to institute
a civil suit unless its cognizance is barred, either expressly or impliedly.

i. Suits expressly barred- a suit is said to be „expressly barred ‟ when it is barred by

any enactment for the time being in force. It is open to a competent legislature to
bar jurisdiction of civil courts with respect to a particular class of suits of a civil
nature, provided that, in doing so, it keeps itself within the field of legislation
conferred on it and does not contravene any provision of the constitution.

ii. Suits impliedly barred- a suit is said to be impliedly barred when it is barred by
general principles of law.
Who may decide?
It is well settled that a civil court has inherited power to decide its own
 28

jurisdiction.

Presumption as to jurisdiction
In dealing with the question whether a civil court‟s jurisdiction to entertain a
suit is barred or not, it is necessary to bear in mind that every presumption should
be made in favor of the jurisdiction of a civil court. The exclusion of jurisdiction of
a civil court to entertain civil causes should not be readily inferred unless the
relevant statute contains an express provision to that effect, or leads to a necessary
and inevitable implication of the nature.

Burden of proof

It is well- settled that it is for the party who seeks to oust the jurisdiction
of a civil court to establish it. It is equally well settled that a statute ousting the
jurisdiction of a civil court must be strictly construed. Where such a contention is
raised, it has to be determined in the light of the words used in the statute, the
scheme of the relevant provisions and the object and purpose of the enactment. In
the case of a doubt as to jurisdiction, the court should lean towards the assumption
of jurisdiction. A civil court has inherent power to decide the question of its own
jurisdiction; although as a result of such inquiry it may turn out that it has no
jurisdiction to entertain the suit.

Very recently, in ChandrakantTukaram v. Municipla Corporation of Ahmedabad,

the supreme court reiterated the principles laid down in earlier decisions and
stated:

“it cannot be disputed that the procedure followed by civil courts are too lengthy
and, consequently, are not an efficacious forum for resolving the industrial disputes
speedily. The power of the industrial courts also is wide and such forums are
empowered to grant adequate relief as they just and appropriate. It is in the interest
of the workmen that their disputes, including the dispute of illegal termination, are
adjudicated upon by an industrial forum.”
Conclusion

From the above contents of my project it can be concluded that section 9 at „the
threshold of the Civil Procedure Code (C.P.C.) primarily deals with the question of
civil court‟s jurisdiction to entertain a cause. It lays down that subject to what are
contained in section 10,11, 12, 13, 47, 66, 83, 84, 91, 92, 115, etc., civil court has
jurisdiction to entertain a suit of civil nature except when its cognizance is
expressly barred or barred by necessary implication. civil court has jurisdiction to
decide the question of its jurisdiction although as a result of the enquiry it may
eventually turn out that it has no jurisdiction over the matter. Civil court has
jurisdiction to examine whether tribunal and quasi- judicial bodies or statutory
authority acted within there jurisdiction. But once it is found that such authority,
e.g., certificate officer had initial jurisdiction, then any erroneous order by him is
not open to collateral attack in a suit. Because there is an essential and marked
 29

distinction between the cases in which courts lack jurisdiction to try cases and
where jurisdiction is irregularly exercised by courts.

End:

III WORKSHOP FOR THE YEAR 2016-17

ON THE TOPIC - EXECUTION

TO BE HELD ON 24-00-2017 UNDER THE

CHAIRMANSHIP OF THE

HON’BLE JUSTICE SRI G.SHYAM PRASAD

 30

Paper presentation on the topic

“JURISDICTION OF THE COURT”

Submitted by
Smt. V.Lakshmi Rajyam
Additional Junior Civil Judge,
Vizianagaram
It is said that the problems of plaintiff starts on obtaining a decree. A
decree in its own is a waste paper, until it is executed. However its not easy to
execute a decree. The difficulty of the decree holder starts after passing of the
decree. Under Sec. 51, subject to such conditions and limitations, the court may on
the application of the decree holder order execution of the decree

(a) by delivery of any property specifically decreed,

(b) by attachment and sale or by sale without attachment of any property,
(c) by arrest and detention in prison for such period not exceeding the period
specified in Sec. 58, where arrest and detention is permissible under the section or
by appointing a receiver or in such other manner in the nature of the relief granted.
The section defines the jurisdiction and the power of the court in the execution of
the decree.

 The term “execution” has not been defined in the code. The expression
“execution” simply means the process for enforcing or giving effect to the
judgment of the court. The principles governing execution of decree and orders are
dealt with in Sections 36 to 74 and Order 21 of the Civil Procedure Code.
The Hon'ble Apex Court in Ghanshyam Das v. Anant Kumar Sinha (AIR
1991 SC 2251) dealing with provision of the code relatingto execution of decree
and orders, observed in following words –

“ 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
 31

code take care of different situations providing effective remedies not

only to judgment debtors and decree-holders but also to claimant
objectors, as the case may be.”

 It is for the decree holder to decide in which of the several modes

mentioned in the section he will execute his decree.
Under Sec. 37, the expression „the Court which passed the decree‟ or words to that
effect, shall in relation to the execution of the decrees, unless there is anything
repugnant in the subject or the context, be deemed to include (a) where the decree
to be executed has been passed in the exercise of appellate jurisdiction, the Court
of first instance and(b) where the court of 28 first instance has ceased to exist or to
have jurisdiction to execute to it, the Court which, if the suit wherein the decree
was passed was instituted at the time of making the application for the execution of
the decree, would have jurisdiction to try such suit. Where a decree has been sent
to another court for execution, all the documents mentioned in Order 21, Rule 6
have to be sent to the court latter court.

Under Order 21, Rule 9, where a decree has been sent to another court for
execution, it can be executed either by the District Court or by such court or
transferred for execution to any other subordinate court of competent jurisdiction.
The executing court cannot go behind or beyond the decree and question the
jurisdiction of the court which passed it.

As per the Explanation to Sec. 38, the court of first instance does not cease to have
jurisdiction to execute a decree merely on the ground that after the institution of
the suit where the decree was passed or after passing of the decree any are has been
transferred from the jurisdiction of that court to the jurisdiction of any other court,
but in every such case, such other court shall also have the jurisdiction to execute
the decree, if at the time of making the application for execution of the decree it
would have jurisdiction to try the said suit.

Sec. 38 of CPC:- Under Sec. 38, a decree may be passed either by the court which

passed it or by the court to which it is sent for execution. A decree can be

transmitted to another court without notice to the Judgment Debtor 1956 ALT 997.
The power is unaffected by the fact that as regards some of the properties there is a
change in jurisdiction.[ AIR 1958 AP 763.]
 32

Sec. 39 of CPC :- Sec. 39 deals with transfer of decree. Under sub-sec.(1), the
court which passed the decree may, on the application of the decree holder, send it
for execution to another court of competent jurisdiction -

(i) if the person against whom the decree is passed actually and voluntarily resides
or carries on business or personally works for gain, within the local limits of the
jurisdiction of such other court, or

(ii) if such person has no property within the local limits of the jurisdiction of the
court which passed the 29 decree sufficient to satisfy such decree and has property
within the local limits of the jurisdiction of such other court, or (iii) if the decree
directs the sale or delivery of immovable property situate outside the local limits of
the jurisdiction of the court which passed it, or (iv) if the court which passed the
decree considers for any other reason, which it shall record in writing, that
thedecree shall be executed by such other court.

Under sub-sec. (2), the court which passed a decree may of its own motion send it
for execution to any subordinate court of competent jurisdiction.

Sub-sec.(4), which has been incorporated by Amendment Act w.e.f. 1.7.2002 vide
SO 604(E) dt. 6.6.2002, says that nothing in the section shall be deemed to
authorise the Court which passed a decree to execute such decree against any
person or property outside the local limits of its jurisdiction. This sub-section
makes it abundantly clear that a decree has yo be executed by arrest or attachment
at the place where the JDr resides or works for gain or where the property is situate
within the local limits of the court executing the decree.

JURISDICTION OF THE COURT TO WHICH THE DECREE HAS BEEN

TRANSFERRED
Under Sec. 42, the court executing a decree sent to it shall have the same powers
in executing such decree as if it had been passed by itself. All persons disobeying
or obstructing the execution of the decree shall be punishable by such Court in the
same manner as if it had passed the decree and its order in executing such decree
shall be subject to the same rules in respect of appeal as if the decree had been
passed by itself. The power of the Court shall include the power to send the decree
for execution to another Court under Sec. 39, power to execute the decree against
L.Rs., of the deceased J.Dr., under Sec.50, power to order attachment of a decree.
However, the court passing an order in exercise of the powers specified above shall
 33

send a copy thereof to the court which passed the decree. The provision being a
special provision will override any general provision. The court to which a decree
has been sent for execution shall not execute it until a regular application is made
to it under Order 21, Rule 11 CPC. The transferor court even after transfer will
have control over the matter and can decide certain questions like executability of
the decree etc., AIR 1958 AP 655 Transferee court in execution can deal with the
mater as if it passed the decree. AIR 1956 SC 359, AIR 1957 AP 40, AIR 1960 AP
321 (FB)

EXECUTION OF DECREE PASSED BY COURTS TO WHICH CPC DOES

NOT EXTEND:-
As regards a decree passed by civil courts in places in which the CPC does not
extend or by any court established or continued by the authority of the Central
Government outside India, under Sec. 43 CPC, may, if it cannot be executed within
the jurisdiction of the court by which it was passed, it can be executed in the
manner provided within the jurisdiction of any court in the territories to which the
Code extends.

EXECUTION OF DECREES PASSED BY REVENUE COURTS IN

PLACES IN WHICH CPC DOES NOT EXTEND
Under Sec. 44 CPC, the State Government may declare by notification in Official
Gazette, declare that the decrees of revenue court in any part of India to which the
Code does not extend, or any class of such decrees, may be executed in the State as
if they had been passed by Courts in that State.

EXECUTION OF DECREES PASSED BY COURTS IN RECIPROCATING

TERRITORY.
Under Sec. 44-A, where a certified copy of a decree of any of the superior Courts
of any reciprocating territory has been filed in a District Court, the decree may be
executed in India as if it had been passed by the District Court. Under Sub-sec. (2)
along with the certified copy of the decree, a certificate from such superior Court
shall be filed stating the extent, if any, to which the decree has or adjusted and such
certificate, shall, for the purpose of proceedings under the section, be conclusive
proof of the extent of such satisfaction or adjustment Under sub-sec. (3), the
provisions of Sec. 47 shall apply from the date of filing of th decree and the
District Court shall refuse execution of any such decree if it is shown to the
satisfaction of the court that the decree falls within any of the exceptions specified
in Sec. 13(a) to (f) CPC.
 34

Under Sec. 45 which deals with execution of decrees outside India, the provisions
of Secs., the provisions of Secs. 42 to 44-A shall apply construing as empowering a
court in any State to send a decree for execution to any court established by the
authority of the Central Government outside India to which the State Government
has by notification in the Official Gazette declared this section to apply.
PRECEPTS

Under Sec. 46, on the application of the Decree holder, the court which passed the
decree, may, whenever it thinks fit, issue a precept to any other court which would
be competent to execute such decree to attach any property belonging to the
judgment debtor and specified in the precept. The court to which a precept is sent
shall proceed to attach the property in the manner prescribed in regard to the
attachment of property n execution of a decree. However, the proviso makes it
amply clear that no attachment under a precept shall continue for more than two
months unless the period of attachment is extended by an order of the court which
passed the decree or unless before the determination of such attachment the decree
has been transferred to the court by which the attachment has been made and the
decree holder has applied for an order for the sale of such property. A precept can
be issued even after transfer of the decree [AIR 1992 Pat 213 (FB).]

Sec. 47 deals with the questions to be determined by the executing court. Under
this section, the executing court can decide whether the decree is void ab initio or
not.

 This section applies to questions arising either before or after execution of a

decree (AIR 1956 SC 87).
 Validity of a decree is not available in execution but only in a separate suit
(AIR 1958 AP 1 (FB).
 The dispute whether a decree is null and void due to lack of jurisdiction can
be decided under this section. (AIR 1970 SC 1475).
 Where only a mere declaratory relief is granted and the decree cannot be
executed as such, a separate suit for necessary directions is the remedy.
[1970(3) SCR 114)].
 Difficult and even complicated issues relating to law or facts of a case can
also be decided under the section. [AIR 1955 SC 376].
 The executing court shall not permit a new plea not raised in the suit, when
it 32 requires an adjudication. (AIR 1982 SC 813).
 Mesne profits have to determined by a decree in the suit and not in
proceedings of execution. (AIR 1958 Mad 414).
 Executing court cannot go behind the decree and decide the question of
limitation in respect of the suit claim (1998(5) ALT 251)].
 Where a court passes a decree without jurisdiction, it is a nullity and the plea
can be raised in execution also. (AIR 1996 SC 1819).
 The Execution Court cannot add or alter the terms of a decree.
 35

Sec.52 of CPC:- Sec.52 deals with enforcement of decree against legal

representative. Where a decree is passed against a party as the legal representative
of a deceased person, and the decree is for payment of money out of the property
of the deceased, it may be executed by the attachment and sale of any such
property. The decree itself has to provide for a direction that the decretal amount
shall be paid out of the deceased J.Drs., property [AIR 1952 SC 170.] Where no
such property remains in the possession of the J.Dr., and he fails to satisfy the
Court that he has duly applied such property of the deceased as is proved to have
come into possession, the decree may be executed against the JDr to the extent of
the property in respect of which he has failed so to satisfy the court in the same
manner as if the decree had been against him personally.

Under Sec. 56 which begins with a non-obstinate clause says that the court shall
not order the arrest and detention in civil prison of a woman in execution of a
decree for payment of money.

Sec.60 deals with property liable to attachment and sale in execution of a decree.
Except the leave salary and arrears of leave salary, the other amounts like gratuity,
insurance amounts etc. is not liable for attachment even after it has reached the
hands of the employee or his/her legal representatives. [(see: Radhey Shyam Gupta
v. Punjab National Bank (2009) 1 SCC 376]

Sec. 63 deals with property attached in execution of decrees of several courts. It

says that where the property not in the custody of any court is under attachment in
execution of decrees of more courts than one, the court which receive or realize
such property shall determine any claim thereto and any objection to attachment
thereof shall be the Court of highest grade or where there is no difference in grade
between such courts, the court under whose decree the property was first attached.
The rule is intended to avoid conflicting claims (AIR 1960 Bom 230 (FB). The
jurisdiction of the executing court is not affected under this Rule (AIR 1961 AP
298). Registrar of a Coop. Societies under the AP Coop. Societies Act is not a
court within the meaning of this section. [(1966) 1 ALT 409)]. In case of sale by an
inferior court, the superior court has to obtain transfer of sale proceeds for rateable
distribution. (AIR 1930 Mad 699).

ARREST OF J.DR:-,The Code of Civil Procedure lays down various modes of

executing a decree. One of such modes is arrest and detention of the judgment-
debtor in a civil prison. The decree-holder has an option to choose a mode for
 36

executing his decree and normally, a court of law in the absence of any special
circumstances, cannot compel him to invoke a particular mode of execution.

Sections 51 to 59 and Rules 30 to 41 of Order XXI deal with arrest and

detention of the judgment debtor in civil prison. The substantive provisions deal
with the rights and liabilities of the decree-holder and judgment debtor and
procedural provisions lay down the conditions thereof. The provisions are
mandatory in nature and must be strictly complied with. They are not punitive in
character. The object of detention of judgment-debtor in a civil prison is twofold.
On one hand, it enables the decree-holder to realise the fruits of the decree passed
in his favour; while on the other hand, it protects the judgment-debtor who is not in
a position to pay the dues for reasons beyond his control or is unable to pay.
Therefore, mere failure to pay the amount does not justify arrest and detention of
the judgment-debtor inasmuch as he cannot be held to have neglected to pay the
amount to the decree-holder. Where the decree is for the payment of money, it can
be executed by arrest and detention of the judgment debtor. Likewise, in case of a
decree for specific performance of contract or for injunction, a judgment debtor
can be arrested and detained. Again, where a decree is against a corporation, it can
be executed with the leave of the court by detention in civil prison of its directors
or other officer.

 As per the Civil Procedure Code, the following classes of persons cannot be
arrested or detained in a civil prison:
1. Judicial officers, while going to, presiding in or returning from their courts.
2. A woman
3.The parties, their pleaders, mukhtars, revenue agents and recognized agents
and their witnesses acting in disobedience to a summons, while going to, or
attending or returning from the court

4. Members of legislative bodies

5. Any person or class of persons, whose arrest, according to the State
Government, might be attended with danger or inconvenience to the public. A
judgment-debtor, where the decretal amount does not exceed rupees two
thousands.

 The provisions relating to arrest and detention of the judgment-debtor

protect and safeguard the interests of the decree-holder. If the judgment-debtor has
means to pay and still he refuses or neglects to honour his obligations, he can be
sent to civil prison.. Mere omission to pay, however, cannot result in arrest or
 37

detention of the judgment-debtor. Before ordering detention, the court must be

satisfied that there was an element of bad faith, “not mere omission to pay but an
attitude of refusal on demand verging on demand verging on disowning of the
obligation under the decree.
The above principles have been succinctly and appropriately explained by Krishna
Iyer, J. in Jolly George Verghese v. Bank of Cochin, in the following words:

“The simple default to discharge is not enough. There must be some element of bad
faith beyond mere indifference to pay, some deliberate or recusant disposition in
the past or alternatively, current means to pay the decree or a substantial part of
it. The provision emphasises the need to establish not mere omission to pay but an
attitude of refusal on demand verging on dishonest disowning of the obligation
under the decree. Here, a consideration of the debtor’s other pressing needs and
straitened

circumstances will play prominently. We would have, by this construction, sauced

law with justice, harmonised Section 51 with the covenant and the Constitution.”

 It was ultimately propounded: “It is too obvious to need elaboration that to

cast a person in prison because of his poverty and consequent inability to meet his
contractual liability is appalling. To be poor, in this land of daridra narayana, is
nocrime and to recover debts by the procedure of putting one in prison is too
flagrantly violative of Article 21 unless there is proof of the minimal fairness of his
willful failure to pay in spite of his sufficient means and absence of more terribly
pressing claims on his means such as medical bills to treat cancer or other grave
illness. Unreasonableness and unfairness in such a procedure is inferable from
Article 11 of the covenant. But this is precisely the interpretation we have put on
the proviso to 51 of CPC and the lethal blow of Article 21 cannot strike down the
provision, as now interpreted”.
Sec. 59 deals with release on grounds of illness. The provisions of the Section 59
Civil Procedure Code are self contained and are not controlled by the provisions of
Section 55(3) and (4) and are based on purely humanitarian grounds. What is
manifest from the provisions of Section 51 and rule 37 of the order XXI of the
CPC is The Court has power conferred upon it under Section 51 of the Code to
order the execution of a decree for the payment of money by arrest and detention
of the judgment-debtor in prison on the application of a decree holder. The
condition precedent for the exercise of the power is that it should be prescribed by
 38

the Court‟s affording an opportunity to the judgment-debtor of showing cause as to

why he should not be committed to civil prison. The Court should be satisfied, for
reasons to be recorded in writing that the judgment-debtor has or has had, since the
date of the decree, the means to pay the amount of the decree or some substantial
part thereof and that the judgment-debtor has refused or neglected to pay the same.

 The court instead of issuing a warrant for the arrest of the judgmentdebtor,
shall have to issue notice calling upon the judgment-debtor to appear before the
Court and show cause why he should not be committed to the civil prison. Where
no such appearance is made in obedience to the notice and if the decree-holder so
requires, it is rendered obligatory on the part of the Court to issue a warrant for the
arrest of the judgment debtor.
 The provisions of section 51 and rule 37 are to be construed as mandatory.
The use of word „shall‟ makes the provision mandatory.
 When each and every step contemplated under section 51 and order 21,
CPC is mandatory and when the liberty of the petitioner is involved, the executing
Court must exhibit care and caution to ensure that each step is followed
scrupulously.
 In the case, since the order under revision disclosed that there was a clear
deviation from the prescribed procedure, it cannot be sustained. The same is
accordingly set aside.
Purpose:- The purpose of issuing a notice is to afford protection to honest debtors
incapable of paying dues for reasons beyond their control This rule recognizes a
rule of natural justice that no person should be condemned unheard. The Court,
however, should not issue a notice mechanically. It has an impact on human
dignity. The high value of human dignity and the worth of the human must always
be kept in mind.

Personal Appearance

When a notice is issued to the judgment-debtor under sub-rule (1), he must appear
in person. It is not sufficient to appear through counsel. Where the judgment debtor
appears in obedience to such notice and the Court is satisfied that he is unable to
pay the decrial amount, the Court may reject the application for arrest. On the other
hand, where the judgment-debtor appears but fails to show cause to the satisfaction
of the Court against arrest and detention, or does not appear in obedience to the
 39

notice, the Court must make an order of detention or issue a warrant of arrest of
judgment-debtor.

 The new rule has to be read with section 51. Under the old rule, it was not
necessary for the decree holder to lead, in the first instance, any evidence in
support of his application for the arrest of the judgment-debtor. When the
judgment-debtor appeared or was brought before the court, he had to prove that
from „poverty or other sufficient cause‟ he was unable to pay the decrial amount, in
default of which an order of commitment could ordinarily be made. Now, the
procedure is regularized and the Court has to hold a formal inquiry in which the
decree-holder has, in the first instance, to lead evidence in support of his
application and then when a prima facie case for commitment is made out, the
Court must give the judgment-debtor an opportunity of showing cause against the
application.
 Inquiry under order 21, rule 40 is mandatory at least in contested cases,
acting only on an affidavit before the issue of warrant is irregular. The Court is
under an obligation to follow the above procedure and that is not dependent on
whether the judgment-debtor has or has not shown cause in response to a notice
issued under rule 37. The Court shall proceed to hear the decree-holder and to take
all such evidence as may be produced by him in support of his application for
execution. It shall then give an opportunity to the judgment-debtor of showing
cause why he should not be committed to civil imprisonment. But no order for
commitment can be made unless the Court is satisfied on any of the grounds set out
in the proviso to section 51 and other provisions of the Code that the commitment
of the judgment-debtor to civil prison is necessary; the burden of proving this will
obviously lie on the decree-holder. Then, again, the proviso to section 51 requires
the Court to record its reasons in writing before making an order of commitment. It
will be noticed that the matters which the Court may take into consideration under
sub-rule 2 of the old rule 40 are now incorporated in the proviso to section 51 and
are not to be found in the new rule.
Scope of the rule

The use of word „then‟ in the provision requiring the Court to give the judgment
debtor an opportunity of showing cause does not mean that the Court necessarily
has to adjourn the case to another date. The privilege conferred by the proviso to
section 51 of the Code on the judgment-debtor cannot be waived at all. In order to
give the judgment debtor an opportunity of satisfying the decree, the Court before
making the order of detention, may leave the judgment-debtor in the custody of an
officer of the Court. The executing Court can continue to exercise its judicial
jurisdiction regarding detention of judgment-debtors in Civil Prison until the
expiry of maximum period of three months provided that the concerned judgment-
debtor gets a right to be released in accordance with proviso to section 58(1) of the
 40

CPC or the Court cannot exercise its power to order re-arrest in view of section
58(1)(a) of the CPC.

Sub-rule (2) provides that the Court may release the judgment-debtor on his
furnishing security, which means furnishing proper security and not illusory
security.

ATTACHMENT :Under Order 21, Rule 43 where the property to be attached is

moveable property, other than agricultural produce, in the possession of the
judgment debtor, the attachment shall be made by actual seizure and the attaching
officer shall keep the property in his own custody or in the custody of his
subordinates and shall be responsible for due custody thereof.

Under Order 21, Rule 44, where the property to be attached is agricultural
produce, the attachment shall be made by affixing a copy of the warrant of
attachment on the land on which such crop was grown or on the threshing floor or
the place for treading out grain or the like or fodder stack or on which it is
deposited where such produce has been cut or gathered.
Order 21, Rule 45 deals with the provisions as to agricultural produce under
attachment.
Order 21, Rule 46, 46A to 46F deals with garnishee proceedings. Order 21, Rule
48 deals with attachment of salary or allowances of servant of the Government or
railway company or local authority. Under this provision, the attachment can be
made even though the judgment debtor or the disbursing officer is or is not within
the limits of the court‟s jurisdiction.

Order 21, Rule 52 deals with attachment of property in custody of court or public
officer. Once the court orders payment of the money to another, it cannot be
attached as judgment debtor‟s money. (AIR 1978 Mad 221).

Order 21, Rule 54 attachment of immovable property.

Order 21, Rule 58 deals with adjudication of claims or objection as to attachment
of property. Claim has to be preferred before attachment or execution is not
governed by this rule. The claim has to be decided under this rule and not by a
separate suit. Any sale is subject to an order in the claim petition. (AIR 1987 SC
144). Claim made in execution is maintainable though no objection was taken at
the time of attachment before judgment in the case (AIR 1964 AP 99). A garnishee
can make a claim though a party has failed to do so. (AIR 1969 SC 762).

 Similarly the provisions under Order 21, Rules 97 to 101 CPC apply with
regard to resistance to delivery of possession to decree holder or purchaser and all
questions including questions relating to right, title or interest in the property
arising between the parties in a proceeding on an application under Rule 97 or 99
or their representatives shall be determined by the court dealing with the
application and not by a separate suit and 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 question. However, under Order 21, Rule 102, the
 41

rules 98 and 100 shall not apply to resistance or obstruction in execution of a

decree or 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.
*****

Attachment of Properties

Workshop III

Scheduled on 24-06-2017

Presented by Sri. Shaik Abdul Shariff,

Principal Junior Civil Judge,
Vizianagaram

In terms of order 38 rule 5 attachment means taking away the power of

alienation of the defendant till the dispute is adjudicated.

Attachment before judgment is very extra ordinary remedy and the pivotal

object of attachment before judgment is to prevent any attempt on the part of the

defendant to defeat the realization of decree that may be passed against him.

Order 38 rule 5 enjoins that where at any stage of a suit, the court is

satisfied either by affidavit or otherwise that the defendant with intent to obstruct

or delay the execution of decree that may be passed against him.

(a) is about to dispose of the whole or any part of his property.

(b) is about to remove the whole or any part of his property from local

jurisdiction of the court, the court may direct the defendant, within a time

to be fixed by it, either to furnish security in such sum as may be specified in the

order, to produce and place at the disposal of the court when required the said

property or the value of the same or such portion thereof as may be sufficient to

satisfy the decree or to appear and showcase why he should not furnish security.

Rule 3: the court may also in the order direct the conditional attachment of the

whole or any portion of the property is so specified.

 42

Rule 4: If an order of attachment is made without complying with the provisions

of sub-rule(1) of such attachment shall be void.

For seeking the relief of order of attachment of property before judgment, it

is incumbent upon the plaintiff that he must show prima facie that his claim is bona

fide and valid.

The scheme of order 38 rule 5 and the use of the words to obstruct or delay

the execution any decree make it manifest that before exercising the power under

the rule the court should be satisfied that there is a reasonable chance of decree

being passed in the suit against the defendant.

The principle propounded by the Hon'ble supreme court in Raman tech. vs

Process engineering company and Anr vs Solanki traders is that if the averments

made in the plaint and the document produced in support of it do not satisfy the

court about the existence of prima facie case, the court need not scrutinize the

interest of the plaintiff should be protected by exercising power under order 38 rule

5 CPC.

The Hon'ble apex court held in Raman Tech. & process engineering

company and Anr, the power under order 38 rule 5 CPC is drastic and extra

ordinary power, such power should not be exercised mechanically on asking.

Difference between attachment prior to decree and attachment after decree:

If an attachment is ordered before judgment, no need to reattach the same

after the decree, an attachment prior to decree is not an attachment for the

enforcement of the decree, but it is a step for preventing the debtor from delaying
 43

or obstructing such enforcement when the decree subsequently passed is sought to

be executed.

In Mamidala suresh babu and others vs. Tirumalasetty Kishnamurthy,2006 3

ALD 605, 2006 3 ALT 250. This judgment elucidates the principle that the merits

of the claim of the contending parties are merely ancillary factors for consideration

by the court in arriving at a conclusion with regard to the essential requirements.

Another illuminating judgment on the aspect of order 38 rule 5 and 6 CPC is the

judgment of Calcutta high court in Premraj vs Md. Manek gazi and other. In the

aforementioned case the Hon'ble Calcutta High court adumbrated the following

principles.

1. That an order 38 rule 5 and 6 can only be issued, if the circumstances exist.

2. Whether such circumstances exist is the question of fact which must be

proved to the satisfaction of the court.
3. That the court would not be justified in issuing an order for attachment
before judgment or security merely because it thinks that no harm would be
done thereby that the defendant would not be prejudiced.
4. That the affidavits in support of the contention of the applicant must not be
vague and must be properly verified, the source of information should be disclosed
and the grounds for the relief should be stated.
5. The object of attachment before judgment must be to prevent future transfer
or alienation.
6. Where only a small portion of property belonging to the defendant is being
disposed of, no inference can be drawn in the absence of other circumstances that
the alienation is necessarily to defraud or delay the plaintiffs claim.
7. It is open to the court to look to the conduct of the parties immediately
before the suit and to examine the surrounding circumstances and to draw an
inference as to whether the defendant is about to dispose of the property if so with
what intention.
8. The fact that the defendant is insolvent or in a acute financial embarrassment
is a relevant circumstance.
Where the defendant starts disposing of his properties one by one.
9. The sale of properties at a gross under value or binami transfers are always
good indication of an intention to defeat the plaintiffs claim.
 44

Effect of order for attachment before judgment when suit is restored and

rights of auction purchaser:

In SARDAR GOVINDRAO MAHADIK & ANR VS.DEVI SAHAI &

ORS.reported in 1982 SCC (1) 237 Hon'ble Supreme Court held as follows:

Order XXXVIII, rule 5, enables the Court to levy attachment before judgment at

the instance of a plaintiff, if the conditions, therein prescribed are satisfied. What is

the nature of attachment levied in this case is not made known save and except

saying that the suit property was attached and the sale proclamation mentioned

therein the subsisting mortgage. Taking the best view in favour of Motilal, One can

say that what was attached was the equity of redemption. The attachment was

levied and continued to subsist till the date of the decree. It would, therefore, not

be necessary to reattach the property.

What is the effect of attachment before judgment ? Attachment before

judgment is levied where the court on an application of the plaintiff is satisfied that

the defendant, with intent to obstruct or delay the execution of any decree that may

be passed against him (a) is about to dispose of the whole or any part of his

property. Or (b) is about to remove the whole or any part of his property from the

local limits of the jurisdiction of the Court. The sole object behind the order

levying attachment before judgment is to give an assurance to the plaintiff that his

decree if made would be satisfied. It is a sort of a guarantee against decree

becoming infructuous for want of property available from which the plaintiff can

satisfy the decree. The provision in section 64 of the Code of Civil Procedure

provides that where an attachment has been made, any private transfer or delivery

of the property attached or of any interest therein and any payment to the judgment
 45

debtor of any debt, dividend or other monies contrary to. such attachment, shall be

void as against all claims enforceable under the attachment.

There is nothing to show that the attachment which would come to an end on

the suit being dismissed would get revived if a second appeal is filed which

ultimately succeeds. In fact, a dismissal of the suit may terminate the attachment

and the same would not be revived even if the suit is restored and this becomes

manifestly clear from the newly added provision in sub rule (2) of rule 11 A of

order XXXIII, C.P.C. which provides that attachment before judgment in a suit

which is dismissed for default shall not be revived merely because by reason of the

fact that the order for the dismissal of the suit for default has been set aside and the

suit has been restored. As a corollary it would appear that if attachment before

judgment is obtained in a suit which ends in a decree but if in appeal the decree is

set aside the attachment of necessity must fail. There should be no difficulty in

reaching this conclusion.

Ordinarily, if the auction purchaser is an outsider or a stranger and if the

execution of the decree was not stayed of which he may have assured himself by

appropriate enquiry, the court auction held and sale confirmed and resultant sale

certificate having been issued would protect him even if the decree in execution of

which the auction sale has been held is set aside. This proceeds on the footing that

the equity in favour of the stranger should be protected and the situation is

occasionally reached on account of default on the part of the judgment debtor not

obtaining stay of the execution of the decree during the pendency of the appeal.

But what happens if the auction-purchaser is the decree holder himself ? In our

opinion, the situation would materially alter and this decree holder-auction

purchaser should not be entitled to any protection. At any rate when he proceeds

with the execution he is aware of the fact that an appeal against the original decree
 46

is pending. He is aware of the fact that the resultant situa-may emerge where the

appeal may be allowed and the decree which he seeks to execute may be set aside.

He cannot force the pace by executing the decree taking advantage of the economic

disability of a judgment debtor in a money decree and make the situation

irreversible to the utter disadvantage of the judgment debtor who wins the battle

and loses the war. Therefore, where the auction-purchaser is none other than the

decree holder who by pointing out that there is no bidder at the auction, for a

nominal sum purchases the property, to wit, in this case for a final decree for Rs.

500, Motilal purchased the property for Rs. 300, an atrocious situation, and yet by

a technicality he wants to protect himself. To such an auction purchaser who is not

a stranger and who is none other than the decree holder, the court should not lend

its assistance.

In Vareed Jacob vs Sosamma Geevarghese & Ors reported in 2004 Law

Suit(SC) 509, Hon'ble Supreme Court Full Bench while holding aspect of

restoration of suit impact of attachment order before judgment held as:

―In the case of Shivaraya v. Sharnappa reported in AIR 1968 Mysore 283, it has

been held that the question whether the restoration of the suit revives ancillary

orders passed before the dismissal of the suit depends upon the terms in which the

order of dismissal is passed and the terms in which the suit is restored. If the Court

dismisses the suit for default, without any reference to the ancillary orders passed

earlier, then the interim orders shall revive as and when the suit is restored.

However, if the Court dismisses the suit specifically vacating the ancillary orders,

then restoration will not revive such ancillary orders. This was a case under Order

39. In the case of Saranatha Ayyangar v. Muthiah Moopanar and others reported in

AIR 1934
 47

Mad 49, it has been held that on restoration of the suit dismissed for default all

interlocutory matters shall stand restored, unless the order of restoration says to the

contrary. That as the matter of general rule on restoration of the suit dismissed for

default, all interlocutory orders shall stand revived unless during the interregnum

between the dismissal of the suit and restoration, there is any alienation in favour

of the third party.

A similar view has been taken by the Patna High Court in the case of

Bankim Chandra v. Chandi Prasad reported in AIR 1956 Pat 271 in which it has

been held that orders of stay pending disposal of the suit are ancillary orders and

they are all meant to supplement the ultimate decision arrived at in the main suit

and, therefore, when the suit, dismissed for default, is restored by the order of the

Court all ancillary orders passed in the suit shall revive, unless there is any other

factor on record or in the order of dismissal to show to the contrary. This was also

a matter under Order 39.

In the case of Nandipati Rami Reddi v. Nandipati Padma Reddy AIR 1978

AP 30, it has been held by the Division Bench of the Andhra Pradesh High Court

that when the suit is restored, all interlocutory orders and their operation during the

period between dismissal of the suit for default and restoration shall stand revived.

That once the dismissal is set aside, the plaintiff must be restored to the position in

which he was situated, when the Court dismissed the suit for default. Therefore, it

follows that interlocutory orders which have been passed before the dismissal

would stand revived along with the suit when the dismissal is set aside and the suit

is restored unless the Court expressly or by implication excludes the operation of

interlocutory orders passed during the period between dismissal of the suit and the

restoration.
 48

In the case of Nancy John Lyndon v. Prabhati Lal Chow-dhury reported in

1987 (4) SCC 78, it has been held that in view of Order 21, Rule 57, C. P. C. it is

clear that with the dismissal of the title execution suit for default, the attachment

levied earlier ceased. However, it has been further held that when the dismissal

was set aside and the suit was restored, the effect of restoring the suit was to

restore the position prevalent till the dismissal of the suit or before dismissal of the

title execution suit. We repeat that this judgment was under Order 21, Rule 57

whose scheme is similar to Order 38, Rule 11 and Rule 11-A, C. P. C. and

therefore, we cannot put all interlocutory orders on the same basis.

The courts, however, would be well-advised keeping in view the controversy

to specifically pass an order when the suit is dismissed for default stating when

interlocutory orders are vacated and on restoration of the suit, if the court intends

to revive such interlocutory orders. An express order to that effect should be

passed.

When the defendant suffers collusive decree in order to defeat the right of the
plaintiff.

If the defendant makes fraudulent transfer as defined under sec.53 of transfer

of property Act he is liable to be prosecuted under sec.208 and sec.210 IPC.

Whether any right accrues to the purchaser of the property when the attachment of
property is in force.

Sec 64 of CPC ordains that where an attachment has been made, any private

transfer or delivery of property attached or any interest therein and any payments

to the judgment debtor of any debt, dividend or other moneys contrary to the

attachment shall be void as against all claims enforceable under the attachment.

Whether there is any remedy to the defendant, if the attachment is sought on false
or vexatious grounds
 49

If the plaintiff obtains the order of attachment by misrepresenting the facts and due

to which if the defendant suffers loss of reputation, he has every right to seek

compensation and the plaintiff is liable to be prosecuted under sec.182 IPC.

What is the mode of attachment

a. The order of attachment shall be affixed on a conspicuous part of the

property
b. By beat of drum
What is the procedure to be followed in case the property to be attached is situated
outside the district(sec.136 CPC)

The court has to send the order of attachment to the district court within the local
limit of whose jurisdiction such property is situated.

Some important judgments of the Hon’ble High Court of Andhra Pradesh as

to the subject matter of ‘Attachment before Judgment’.

1) Katari Ratna Rani vs Velagapudi Rama Rao And Ors, 2003 (6) ALT 79.
2) Mamidala Suresh Babu And Ors. vs Tirumalasetti Krishnamurthy, 2006
(3) ALT 250
3) State Of A.P. vs Prakash, 2007 (1) ALD 133, 2007 (1) ALT 383
4) Sri Laxmi Cloth Stores, … vs Ratna And Co., Machilipatnam, 1999 (6)
ALT 681
5) Rama Murthy And Ors. vs Srinivas Corpn. General , AIR 1989 AP 58
6) S.P. V. Babu v. Varalakshmi Finance Corporation, 1996 (4) ALD 453,
7) Union Bank Of India, Visakapatnam‟s case, AIR 1982 AP 408
8) Duvvuru Siva Kumar Reddy vs Malli Srinivasulu, 2006 (1) ALT 570
9) Allu Appa Rao vs Siriki Bapu Naidu And Ors, 2006 (5) ALD 240
10) Gosu Venkata Sesha Reddy And Anr. vs Valluru Krishnaiah, 2005 (4)
ALT 238
11) Ananthula Buchiramulu vs Sakinala Janaki Ramaiah, 2004 (2) ALD 730
12) Pasupulati Seshanna vs Epparala Balaiah (Died) Per Lrs, 2006 (3) ALD
511

Sd/- SHAIK ABDUL SHARIFF

PRINCIPAL JUNIOR CIVIL JUDGE,
VIZIANAGARAM.
 50

PAPER PRESENTATION FOR III WORKSHOP ON THE TOPIC OF

ATTACHMENTS IN EXECUTION

Paper presented By :

G. GANGARAJU,
Principal Junior Civil Judge,
Parvatipuram,
Vizianagaram District.

INTRODUCTION

1. The Judges of the Subordinate Courts need to pay personal attention to

execution cases. The judgment debtor who is the looser in the case tries his level best to

avoid finality in the execution case by filing one or the other objections. The party who

has been successful in the litigation suffers mental and physical torture and financial loss

if he did not get the fruits of the decree in his favour. If the decree is not executed

within a reasonable time, the decree holder is disappointed and sometimes this gives a

cause of complaint against the presiding judge. The judge should try to find out the

causes of delay in execution of decree.

2. The code of Civil Procedure recognizes the right of the decree holder to

attach the property of the Judgment debtor in execution proceedings and lays down

the procedure to effect attachment. Sections 60 to 64 and Rules 41 to 57 of Civil

Procedure Code and Rule 205 to 293 of Civil Rules of Practice deals with the subject of

attachment of the property.

3. OBJECT:

The primary object of attachment of property is to give notice to the

Judgment-debtor not to alienate the property to anyone as also to the general public

not to purchase or in any other manner deal with the property of the Judgment-debtor

attached in execution proceedings. At the same time,it protects a Judgment-debtor

by granting exemption to certain properties from attachment and sale.

 51

4. APPLICATION FOR EXECUTION:

Where the holder of decree desires to execute it, he shall apply to the

Court which passed the decree or to the officer (if any) appointed in this behalf, or it

the decree has been sent under the provisions hereinbefore contained to another

Court then to such Court or to the proper officer thereof. Order 21, Rule 10 of Civil

Procedure Code deals the said aspect.

Order XXI, Rule 11(1) and (2) reads as follows:

11. Oral application.- (1) Where a decree is for the payment of money the

court may, on the oral application of the decree holder at the time of the

passing of the decree, order immediate execution thereof by the arrest of

the judgment debtor, prior to the preparation of a warrant if he is within

the precincts of the court.

(2) Written application—Save as otherwise provided by sub-rule (1), every

application for the execution of a decree shall be in writing, signed and

verified by the applicant or by some other person proved to the

satisfaction of the court to be acquainted with the facts of the case, and

shall contain in a tabular form the following particulars, namely:—

(a) the number of the suit;

(b) the names of the parties;

(c) the date of the decree;

(d) whether any appeal has been preferred from the decree;

(e) whether any, and (if any) what, payment or other adjustment of the

matter in controversy has been made between the parties subsequently

to the decree;
 52

(f) whether any, and (if any) what, previous applications have been

made for the execution of the decree, the dates of such applications and

their results;

(g) the amount with interest (if any) due upon the decree, or other relief

granted thereby, together with particulars of any cross decree, whether

passed before or after the date of the decree sought to be executed;

(h) the amount of the costs (if any) awarded;

(i) the name of the person against whom execution of the decree is

sought; and the mode in which the assistance of the court is required,

whether—

(i) by the delivery of any property specifically decreed;

(ii) by the attachment, or by the attachment and sale, or by the sale

without attachment, of any property;

(iii) by the arrest and detention in prison of any person;

(iv) by the appointment of a receiver;

(v) .otherwise, as the nature of the relief granted may require.

5. MODE OF EXECUTION:

Every decree for the payment of money, including a decree for the

payment of money as the alternative to some other relief, may be executed by the

detention in the civil prison of the judgment-debtor, or by the attachment and sale of

his property, or by both as provided in Order 21, Rule 30 of Civil Procedure Code.

Execution of decree for specific movable property, decree for specific

performance for restitution of conjugal rights, or for an injunction, endorsement of

negotiable instrument, decree for immovable property, decree for delivery of

immovable property when in occupancy of tenant the procedure contemplated

under Order, 21, Rule 31 to 36 of Civil Procedure Code.

6. ATTACHMENT OF PROPERTY:

All salable property (movable and immovable) belonging to the

Judgment-debtor (or) over which, or the profits of which, he has a disposing power
 53

which he may exercise for his own benefit, whether the same be held in the name of

the judgment-debtor or by another person in trust for him or on his behalf. It means the

salable property belonging to the Judgment-debtor may be attached and sold in

execution of the decree. The said aspect deals with Section 60 of Civil Procedure

Code.

7. PROPERTY WHICH CAN BE ATTACHED:

Section 60 of Civil Procedure Code provides that the property which can

be attached and which cannot be attached.

The following property is liable to attachment and sale in execution of a

decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques,

bills of exchange, hundis, promissory notes, Government securities, bonds or other

securities for money, debts shares in a corporation and, save as hereinafter mentioned,

all other saleable property, movable or immovable, belonging to the Judgment-debtor,

or over which, or the profits of which, he has a disposing power which he may exercise

for his own benefit, whether the same be held in the name of the Judgment-debtor or

by another person in trust for him or on his behalf.

8. PROPERTY WHICH CAN NOT BE ATTACHED:

(a) the necessary wearing apparel, cooking vessels, beds and bedding of the

judgment debtor, his wife and children, and such personal ornaments as, in

accordance with religious usage, cannot be parted with by any woman;

(b) tools of artisans, and, where the judgment debtor is an agriculturist, his implements

of husbandry and such cattle and seed grain as may in the opinion of the court, be

necessary to enable him to earn his livelihood as such, and such portion of agricultural

produce or of any class of agricultural produce as may have been declared to be free

from liability under the provisions of the next following section;

(c) houses and other buildings (with the materials and the sites thereof and the land

immediately appurtenant thereto and necessary for their enjoyment) belonging to an

agriculturist or a labourer or a domestic servant and occupied by him;

 54

(d) books of account;

(e) a mere right to sue for damages;

(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners of the Government or of a local

authority or of any other employer, or payable out of any service family pension fund

notified in the Official Gazette by the Central Government or the State Government in

this behalf, and political pension;

(h) the wages of labourers and domestic servants, whether payable in money or in kind;

(i) salary to the extent of the first one thousand rupees and two-thirds of the remainder

in execution of any decree other than a decree for maintenance:

Provided that where any part of such portion of the salary as is liable to attachment has

been under attachment, whether continuously or intermittently, for a total period of

twenty four months, such portion shall be exempt from attachment until the expiry of a

further period of twelve months, and, where such attachment has been made in

execution of one and the same decree, shall, after the attachment has continued for a

total period of twenty four months, be finally exempt from attachment in execution of

that decree;

(ia) one-third of the salary in execution of any decree for maintenance;

(j) the pay and allowances of persons to whom the Air Force Act, 1950, or the Army Act,

1950, or the Navy Act, 1957, applies;

(k) all compulsory deposits and other sums in or derived from any fund to which the

Provident Funds Act, 1925 (19 of 1925), for the time being applies, in so far as they are

declared by the said Act not be liable to attachment;

(ka) all deposits and other sums in or derived from any fund to which the Public
Provident Fund Act, 1968 (23 of 1968), for the time being applies, in so far as they are
declared by the said Act as not to be liable to attachment;

(kb) all moneys payable under a policy of insurance on the life of the judgment debtor;

(kc) the interest of a lessee of a residential building to which the provisions of law for the
time being in force relating to control of rents and accommodation apply;

(I) any allowance forming part of the emoluments of any servant of the Government or
of any servant of a railway company or local authority which the appropriate
Government may, by notification in the Official Gazette, declare to be exempt from
 55

attachment, and any subsistence grant or allowance made to any such servant while
under suspension;

(m) an expectancy of succession by survivorship or other merely contingent or possible

right or interest;

(n) a right to future maintenance;

(o) any allowance declared by any Indian law to be exempt from liability to

attachment or sale in execution of a decree; and

(p) where the judgment debtor is a person liable for the payment of land revenue, any

movable property which, under any law for the time being applicable to him, is exempt

from sale for the recovery of an arrear of such revenue.

9. In RAGHAVARAPU NAGESWARA RAO Vs TENNETI VENKATA LAKSHMINARAYANA

1997(6) ALT 762, it was held that salary under attachment in execution of one and the

same decree for a continuous period of 24 months is finally exempted from attachment

thereafter in execution of the very same decree.

In ASHUTHOSH Vs STATE OF RAJASTHAN & OTHERS 2005 (6) SCJ 647, it was held

that a partner is always liable for partnership debt unless there is implied or express

restriction.

There was a conflict of judicial opinion as to whether a judgment-debtor can

waive the benefit conferred on him by the proviso. One view was that since it was

intended for the benefit of the judgment-debtor he can waive it. Another view was that

it was based on public policy and, therefore, cannot be waived by him.

Now it is clarified that any agreement to waive the benefit of any exemption

under Section 60 shall be void. Section 61 empowers the State Government to exempt

agricultural produce from attachment or sale. This provision is intended to enable an

agriculturist to continue agricultural operations even after execution of a decree.

10. PARTIAL EXEMPTION OF AGRICULTURAL PRODUCE:

The State Government may, by general or special order published in the

Official Gazette, declare that such portion of agricultural produce, or of any class of

agricultural produce, as may appear to the State Government to be necessary for the
 56

purpose of providing until the next harvest for the due cultivation of the land and for

the support of the judgment debtor and his family, shall, in the case of all agriculturists

or of any class of agriculturists, be exempted from liability to attachment or sale in

execution of a decree as contemplated under Section 61 of Civil Procedure Code.

11. SECTION 62 OF CPC : SEIZURE OF PROPERTY IN DWELLING HOUSE.-

(1) No person executing any process under this Code directing or

authorizing seizure of movable property shall enter any dwelling house after sunset and

before sunrise.

(2) No outer door of a dwelling house shall be broken open unless such

dwelling house is in the occupancy of the judgment debtor and he refuses or in any

way prevents access thereto, but when the person executing any such process has

duly gained access to any dwelling house, he may break open the door of any room in

which he has reason to believe any such property to be.

(3) Where a room in a dwelling house is in the actual occupancy of a

woman who, according to the customs of the country, does not appear in public, the

person executing the process shall give notice to such woman that she is at liberty to

withdraw; and, after allowing reasonable time for her to withdraw and giving her

reasonable facility for withdrawing, he may enter such room for the purpose of seizing

the property, using at the same time every precaution, consistent with these provisions,

to prevent its clandestine removal.

12. PROPERTY ATTACHED IN EXECUTION OF DECREES OF SEVERAL COURTS.-

(1) Where property not in the custody of any court is under attachment in

execution of decrees of more courts than one, the court which shall receive or realize

such property and shall determine any claim thereto and any objection to the

attachment thereof shall be the court of highest grade, or, where there is no difference

in grade between such courts, the court under whose decree the property was first

attached as contemplated under Section 63 of Civil Procedure Code.

 57

13. PRIVATE ALIENATION OF PROPERTY AFTER ATTACHMENT TO BE VOID.-

(1) Where an attachment has been made, any private transfer or delivery

of the property attached or of any interest therein and any payment to the judgment

debtor of any debt, dividend or other moneys contrary to such attachment, shall be

void as against all claims enforceable under the attachment as contemplated under

Section 64 of Civil Procedure Code.

(2) Nothing in this section shall apply to any private transfer or delivery of the

property attached or of any interest therein, made in pursuance of any contract for

such transfer or delivery entered into and registered before the attachment.

Explanation : For the purposes of this section, claims enforceable under an attachment
include claims for the rateable distribution of assets.

14. EXAMINATION OF J.DR., REGARDING HIS PROPERTY:

Examination of the Judgment-debtor as to his property, where a decree is

for the payment of money the decree-holder may apply to the Court for an order that

the Judgment-debtor or any officer thereof or any other person be orally examined as

to whether any or what debts are owning to the judgment-debtor and whether the

judgment-debtor has any and what other property or means of satisfying the decree;

and the court may make an order for attendance and examination of such judgment-

debtor, or officer or other person, and for the production of any books or documents.

Where a decree directs an inquiry as to rent or mense profits or any other

matter, the property of the judgment-debtor may, before the amount due from him has

been ascertained, be attached, as in the case of an ordinary decree for the payment

of money as contemplated under Rule 43 of Civil Procedure Code.

Where the property to be attached is movable property, other than

agricultural produce, in the possession of the judgment-debtor, the attachment shall

be made by actual seizure, and the attaching officer shall keep the property in his own

custody or in the custody of one of his subordinates, and shall be responsible for the

due custody thereof: Provided that, when the property seized is subject to speedy and
 58

natural decay, or when the expense of keeping it in custody is likely to exceed its value,

the attaching officer may sell it at once.

15. CUSTODY OF MOVABLE PROPERTY:

Sec. 43A. Custody of movable property.- (1) Where the property attached

consists of live-stock, agricultural implements or other articles which cannot

conveniently be removed and the attaching officer does not act under the proviso to

rule 43, he may, at the instance of the judgment debtor or of the decree holder or of

any other person claiming to be interested in such property, leave it in the village or

place where it has been attached, in the custody of any respectable person

(hereinafter referred to as the “custodian”).

(2) If the custodian fails, after due notice, to produce such property at the

place named by the court before the officer deputed for the purpose or to restore it to

the person in whose favour restoration is ordered by the court, or if the property, though

so produced or restored, is not in the same condition as it was when it was entrusted to

him,—

(a) the custodian shall be liable to pay compensation to the decree holder, judgment
debtor or any other person who is found to be entitled to the restoration thereof, for any
loss or damage caused by his default; and

(b) such liability may be enforced—

(i) at the instance of the decree holder, as if the custodian were a surety under section
145;

(ii) at the instance of the judgment debtor or such other person, on an application in
execution; and

(C) any order determining such liability shall be appealable as a decree.)

16. ATTACHMENT OF AGRICULTURAL PRODUCE:

Section 44 of CPC: Attachment of agricultural produce.- Where the

property to be attached Is agricultural produce, the attachment shall be made by

affixing a copy of the warrant of attachment,—

 59

(a) where such produce is a growing crop, on the land on which such crop

has grown, or

(b) where such produce has been cut or gathered, on the threshing floor or

place for treading out grain or the like or fodder stack on or in which it is deposited, and

another copy on the outer door or on some other conspicuous part of the house in

which the judgment debtor ordinarily resides or, with the leave of the court, on the

outer door or on some other conspicuous part of the house in which he carries on

business or personally works for gain or in which he is known to have last resided or

carried on business or personally worked for gain; and the produce shall thereupon be

deemed to have passed into the possession of the court.

17. GARNISHEE ORDER:

Garnishee order : Garnishee means a judgment-debtor's debtor. He is a

person who is liable to pay a debt to a judgment-debtor or to deliver any movable

property to him. A garnishee order is an order passed by a Court ordering a garnishee

not to pay money to the judgment-debtor because the latter is indebted to the

garnishee. The primary object of a garnishee order is to make the debt due by the

debtor of the judgment-debtor available to the decree-holder in execution without

driving him to a suit. Garnishee proceeding is a process of enforcing a money judgment

by the seizure or attachment of debts to accruing due to the judgment-debtor which

found part of his property available in execution. Before using attachment, the Court

may issue notice to garnishee. Such notice calls upon garnishee to pay the amount to

satisfy the decree or to show cause why he should not do so. If garnishee makes

payment in the Court, it will amount to valid discharge of his debts. A garnishee has

right to show cause why such debts is not payable or why he should not be called upon

to make the payment in the Court. If the garnishee disputes the liability, it shall be

decided as if it were and issue in a suit and upon determination of such issue, the Court

can make order as deemed fit. Rule 48 relates to attachment of salary and allowances

of servants of government or local authority. The amendment seeks to cover also the

employees of corporations engaged in trade or industry and established by statute or

government companies so as to place them on the same footing as government

 60

servants. Rule 48-A provides the procedure for the attachment of salary and

allowances of the employees employed by private employers. Rules 43 to 54 of Order

21 lay down the procedure for attachment 4 of different types of movable and

immovable properties. These provisions may be explained by the following chart:

18. MODES OF ATTACHMENT: SECTION 62, ORDER 21 RULES 43-54

Type of Property Mode of Attachment

1. Movable property (other than By actual seizure there of. But if such
agricultural produce) in possession property is perishable, or the expense of
of the judgment-debtor; keeping it is likely to exceed its value, it
may be sold.

2. Movable property consisting of Live By leaving the same in the custody of a

stock, agricultural implements or respectable person as the custodian.
other articles which cannot
conveniently be attached;

3. Movable property not in possession By an order prohibiting the person in

of the Judgment-debtor; possession thereof from giving it to the
judgment-debtor.

4. Negotiable instrument neither By actual seizure and brining it in to court.

deposited in a court nor in the
custody of a public officer;

5. Debt not secured by a negotiable By an order prohibiting the creditor from

instrument; recovering the debt and the debtor from
paying the debt.

6. Share in the capital of a By an order prohibiting the person in

Corporation; whose name the share stands from
transferring it or receiving dividend
thereon.

7. Share or interest in movable By a notice to the judgment-debtor

property belonging to the judgment- prohibiting him form transferring or
debtor and another as co-owner; charging it.

8. Salary or allowance of a public By an order that the amount shall (subject

servant or a private employee to provisions of section 60) be withheld
form such salary or allowances either in
one payment or by monthly installments.

9. Partnership property By making an order:

 61

(a) Charging the interest of the partner

in the partnership property;

(b) appointing a receiver of the share

of the partner in profits;

(c) directing accounts and inquiries;

and

(d) ordering sale of such interests.

10. i) Decree for payment of money or

sale in enforcement of a mortgage
or charge-

(a) passed by the court executing By an order of such court

the decree;
By issuing a notice to such court
(b) passed by another court; requesting it to say execution thereof.

(ii) Decree other than that By issuing a notice (a) to the decree-
mentioined above; holder prohibiting him from transferring or
charging it in any way; (b) to the
executing court form executing it until
such notice is cancelled.

11. Agricultural produce By (i) affixing a copy of the warrant (a) in

case of growing crop on land on which
such crop has grown; and 9B) in case of
ready crop, the place at which it is lying;
and (ii) also by affixing a copy on the
house in which the judgment-debtor
ordinarily resides, carries on business or
personally works for gain, or last resided,
carried on business or personally worked
for gain.

Where application is for the

attachment of growing crop, it shall
specify the time at which is likely to be
harvested. (The object is to enable the
court to make necessary arrangements for
the custody of the crop).

12. Immovable property By an order prohibiting the judgment-

debtor from transferring or charging it in
any manner and all persons from taking
any benefit from such transfer or charge.

19. DETERMINATION OF ATTACHMENT UNDER ORDER 21, RULES 55 TO 58 OF CPC:-

An attachment under the Code will be determined in the following circumstances:

 62

(i) Where the decretal amount is paid or the decree is otherwise satisfied;

(ii) Where the decree is reversed, or is set aside;

(iii) Where the court upholds objection against the attachment and makes an order
releasing the property;

(iv) Where after the attachment the application for execution is dismissed;

(v) Where the attaching creditor withdraws attachment;

(vi) Where the decree-holder fails to do what he is bound to do under the decree;

(vii) Where the attachment is ordered before judgment and the defendant furnishes
the necessary security;

(viii) Where there is agreement or compromise between the parties;

(ix) Where the attaching creditor abandons the attachment.

20. ATTACHMENT OF SALARY OF J.DR:

If the J.Dr., is a Government Servant, fails to pay the decretal amount on

the application of Decree Holder, the court may attach the salary of Judgment-debtor

for the realization of the decretal amount subject to Section 60 of Civil Procedure Code

as contemplated under Order 21,Rule 48 of Civil Procedure Code. If the Judgment-

debtor is a private employee, the court may attach the salary under Order 21, Rule 48-

A of Civil Procedure Code.

21. PRECEPT

The property of J.Dr., is situated within the local limits of the court, the

court can attach the property towards satisfaction of the Decretal amount. If the

property of Judgment-Debtor is situated outside the jurisdiction of the court, upon the

application of Decree Holder, may issue a precept to any other court which would be

competent to execute such decree to attach any property belonging to the Judgment

debtor and specified in the precept as contemplated under Section 46(1) of Civil

Procedure Code.

CONCLUSION

The Endeavour of chapter execution is not only interest of the parties to the suit

and also 3rd parties whose interest involved without their knowledge. The legislature has

in its wisdom foreseen various nature of claims that may occasion during the process
 63

of execution under Order 21, Rule 58 of CPC. The objections in respect of satisfaction of

the decree, attachment of the property and its sale should be decided without

unnecessary adjournments. In this process the court should not give long dates in

execution cases at his discretion. Success or failure of system of civil justice depends on

success in executing decrees of the civil courts. Execution is the process of realize the

fruits of the decree.

Submitted by:

G. Gangaraju,
Principal Junior Civil Judge,
Parvatipuram,
Vizianagaram District.
 64

ATTACHMENTS

Execution is the act of carrying in to effect the final judgment of a court. It is

the enforcement of decrees and orders of courts through the process of court. In
its practical sense execution is the formal method prescribed by law, whereby the
party, entitled to the benefit of a judgment or of any obligation equivalent to the
judgment, may obtain that benefit with regard to execution, the provisions in
Order 21, as well as the sections in C.P.C. should be followed.

Rules 42 to 54 of Order 21 C.P.C. deals with attachment of property for

realization of decretal amount by the Decree holder. Apart from these provisions
Section 60 deals with the properties which can be attached and which cannot be
attached. Order 38 Rule 5 C.P.C. also deals with attachment of property but it
deals with the circumstances which it can be attached before judgment.

Order 38 Rule 5 C.P.C.

Where defendant may be called upon to furnish security for production of

property -

When the defendant is about to dispose of the whole or any part of the property,

(1) Is about to remove the whole or any part of his property from the local
limits of the jurisdiction of the court,

The court may direct the defendant, within a time to be fixed by it, either to
furnish security, in such sum as may be specified in the order, to produce and
place at the disposal of the court, when required, the said property or the
value of the same or such portion thereof as may be sufficient to satisfy the
decree or to appear and show cause why he should not furnish security.

According to this provision the plaintiff can attach the property of the
defendant for the security of the suit amount even before judgment which
may be passed in future.

Section 60 C.P.C. deals with the attachment of property of the Judgment

Debtor and exemptions for the attachment. Property includes movable or
immovable. Movable property includes cash available and also salary of a
 65

Government employee which will be drawn in future though it is not available

at the present.

Attachment of Salary

Salary of the Government servant shall not be liable for the attachment ot the
extent of Rs.1,000/- and 2/3rd of the remainder in execution of a decree other
than a decree for maintenance. In case of execution of a decree for
maintenance only 1/3rd of the salary is liable for attachment in execution of a
maintenance decree.

In case if the attachable portion of the salary has been under attachment for a
period of 24 months, either continuously or intermittently, such portion shall
exempt from attachment, until the expiry of a further period of 12 months. If
such attachment has been made in execution of one and the same decree,
shall after the attachment has continued for a total period of 24 months be
finally exempt from attachment in execution of that decree.

Under Order 21 Rule 48 C.P.C. the salary of a Government servant can be

attached by the court. If the court attached the salary and sent a warrant of
attachment of salary, the officer whose duty it is to disburse the same shall
withhold and remit to the court the amount due under the order or monthly
instalments as the case may be.

If the attachable portion of salary of the employee is already attached in

previous warrant the disbursing authority shall forthwith return the
subsequent order to the court issuing it with a full statement of all the
particulars of the existing attachment. Unless it is returned in accordance with
the provision Order 21 Rule 48 (2) bind the garnishee shall liable for any sum
paid in contravention of warrant. For attachment of salary there need not be
territorial jurisdiction as it can be filed where ever the DHr. wants.

Rule 48 A deals with attachment of salary of a private employee. This

section is inserted by C.P.C. (Amendment Act 1977). There is no distinction
between salaries of servants of Government employee and private employee.

Immovable property
 66

According to Sec.60 C.P.C. the attachable property are lands, houses,

buildings, goods, money, cheques, bills of exchange hundies, promissory notes,
Government securities, bonds, debts, shares, all other salable property. In the
same section it is also explained what are the property which are exempted
from attachment also explained.

The immovable property can be attached by way a warrant affixing in

conspicuous places in the locality where the property situated and by way of
beat of tom tom. In case of movable property by taking physical possession it
can be attached. In such case attached movable property shall be handed over
to any responsible person until the sale.

Sec 63 C.P.C. says the circumstances where same property is attached by

several courts. In such case the which is higher in hierarchy prevails over the
subordinate curt. In case both the courts are in same cadre then which court
gave the attachment warrant first prevails.

EFFECT OF ATTACHMENT

As per Section 64 C.P.C. Even though the property is attached it will not
create any right to the Decree Holder in the attached property. The JDr can
enjoy the property even after attachment. The attachment can only prevent
alienation of the attached property. Even if it is alienated the vendee cannot
get any right in the property through his purchase. Such alienation is void
against all the claims enforceable under attachment but not void ab initio. But
if the sale is made by operation of law or as per the order of the court then
the attachment cannot give any effect.

Thank you
Paper presentation by
N.RAJYALAKSHMI
Senior Civil Judge,
Bobbili
 67

CLAIM PETITIONS

Where a suit is decreed, the decree holder would apply for

execution of the decree but on the same time the parties who are having

interest in the subject matter of the suit, can file the petition claiming

their rights on the subject matter. Order 21 Rule 58 says

Adjudication of claims to, or objections to attachment of, property:-

(1) Where any claims preferred to, or any objection is made to the

attachment of, any property attached in execution of a decree on the

ground that such property is not liable to such attachment, the court

shall proceed to adjudicate upon the claim or objection in accordance

with the provisions herein contained:

Provided that no such claim or objection shall be entertained

(a) where, before the claim is preferred or objection is made, the property

attached has already been sold; or

(b) where the court considers that the claim or objection was designedly

or unnecessarily delayed.

All persons who have interest on the subject matter of the property

attached can prefer a claim petition under Order 21 Rule 58 of the CPC.

All questions (including questions relating to right, title or interest in the

property attached) arising between the parties to a proceeding or their

representatives under this rule and relevant to the adjudication of the

 68

claim or objection, shall be determined by the court dealing with the

claim or objection and not by a separate suit.

Scope of claim petition:

The cause of action for filing an application under order 21 rule 58

CPC would arise only when attachment is effected. In the absence of

effective attachment, no claim petition can be entertained. In

MIRTHUBASINI VS EASWARAMURTHY on 5 August, 2011 it was

observed their lordship that "even before filing the claim petition under

Order 21 Rule 58, the Sale Deed was already executed by the Execution

Court in favour of the plaintiff/decree holder. It is, therefore, no property

was attached by the Execution Court and the Sale Deed itself was

already executed by the Execution Court in favour of the plaintiff/decree

holder. In such circumstances, the Claim Petition filed under Order 21

Rule 58, as if there was an attachment and that was to be released is not

at all maintainable"

Order 21 Rule 58 not only applicable to immovable properties and it is

also applicable to movable properties The rule applies to the orders on

claims preferred on property attached before judgment .As the very

object of the provision shows, it contemplates the adjudication of claims

or objections in regard to attachment of property. If the attachment is

before the judgment it is governed by Order 38 Rule 5 of CPC. If it is

regarding the immovable property the meaning and method of

attachment is in accordance with Order 21 Rule 54 of CPC. The

attachment will subsist as long as decree is satisfied, as long as the

execution petition survives, and as long as it is not nullified by virtue of

the rejection of the claim of attachment under Order 21 Rule 58 of CPC.

 69

The property so attached will be sold by virtue of Order 21 Rule 64 of

CPC. In other words, attachment precedes the sale. The object of

attachment of a property has to be garnered in the nature and form of

order of attachment either under Order 38 Rule 5 of CPC or Order 21

Rule 50 of CPC held in K.B.V. NAGABHUSHANA GUPTA vs RAMADUGU

VENKATESWARA RAO AND ... on 23 April, 1996. Failure to raise an

objection to an attachment before judgment is no bar to claim at the

time of execution held in AIR 1964 AP 99.

Order 21 Rule 58 is the material provision dealing with any claim

or objection that may be made to the attachment of any property in

execution of a decree. The object of Order 21 Rule 58 is to release the

property from attachment, so as to save it from a wrongful sale. Claim

petition can be filed only after attachment of a properties. Movable

properties are yet to be attached and that the petition filed under Order

21 Rule 58 C.P.C is pre-mature and therefore, it is not maintainable held

in MRS.NALINI SIVAPRAKASH, REP.BY HER POWER OF ATTORNEY,

P.MUTHUKUMARASAMY (Madras) dated 12.01.2012

Executing Court has power to determine the validity of agreement

of sale on which claimant relies held in PUNAMACHA ASHOK RAJU @

ASHOK v. INDUKURI VENKATA GOPALA KRISHNAM RAJU AND

OTHERS [2013 (4) ALT 216 (DB)]

Order 21 Rule 58 is not applicable to arbitration proceedings:

Order 21 Rule 58 is not applicable to arbitration proceedings like

other E.P. proceedings. The court found that the jurisdiction under

Section 9 is only to grant an interim measure till the conclusion of the

arbitral proceedings, and that all the provisions of the CPC including
 70

Order 21 Rule 58 are not made applicable to arbitral proceedings,

particularly to the court dealing with the petition under Section 9 of the

Act held in.M/S. Muthoot Leasing And Finance ... vs N.P.Asiya on 7

February, 2011.

Order 21 Rule 58 is not applicable to land acquisitions matters:

The occasion to invoke Rule 58 of Order XXI CPC would arise, only

when an item of immovable property, said to be owned by the

Government, or some amount, which is otherwise payable to the Land

Acquisition Officer, is attached in the course of execution of the decree

passed in the O.P. When the amount is deposited by the judgment-

debtor, i.e., the Land Acquisition Officer, the question of invoking Rule

58 does not arise. If at all the 1st respondent wanted to establish his

claim to the acquired property, the only course open to him was, to file a

suit for declaration held in GOPANA SUBBA RAYUDU v. PASUPULETI

VENKATA RAMANA AND OTHERS [2009 (6) ALT 117].

PROCEDURE:

The claim under Rule 58 of Order 21 CPC is similar to a suit and it

needs to be examined in detail duly recording the evidence adduced by

the parties. In claim petition, the burden is on the claimant to prove that

on the date of attachment, he has some right, title or interest or was in

possession of property attached. If the claimant succeeded in proving

that fact, then burden is shifts on decree-holder to prove that the

objector was not the owner or holds any interest for judgment-debtor. In

a suit filed by a third party to the litigation, burden of establishing right,

title or interest in the property is upon the plaintiff.

 71

Rule 246 of Civil Rules of Practice says application by a claimant

or objector, under Rule 58 of Order 21 of the Code shall be made by a

verified execution application entitled in execution petition under which

the property in question has been attached and shall set forth the

particulars of the claim in the manner prescribed for the plaint in a suit

as Form No.66. Rule 58 (1) (2) Order XXI, says while entertaining a claim

or objection, the Court must invariably, investigate fully and finally and

adjudicate upon all the questions including the questions of right, title

and interest in the attached property arising between the parties.

Who may file claim petition:

All persons who are having interest over the property can prefer a

claim petition when a claimant has lease hold rights over the property we

can avail the remedy under Order 21 Rule 58. When there is a joint

family property the decree holder under order 21 Rule 58 can proceed

only against the Judgment debtor for satisfaction of the judgment only

remedy available to him in respect of the joint family property is to obtain

a sale of the share of the judgment debtor in the property and

attachment if at all may be affected in respect of such share of the

property only. The word property under Order 21 Rule 58 is vide enough

to include a debt where a debt due to the J.Dr from another person is

attached an execution of the decree. The other person from whom the

debt is due can apply order 21 Rule 58 to have attachment removed.

Sale Agreement was entered into by the Judgment Debtor/father of

the claim petitioner even before she was born. To enforce the said Sale

Deed only, the decree holder filed the suit, obtained a decree and got the

sale deed also executed in the previous execution proceedings. Therefore,

it is not now open to the claim petitioner to claim that the sale deed
 72

executed in favour of the decree holder is not binding on her and

therefore possession cannot be parted with.

MIRTHUBASINI VS EASWARAMURTHY ON 5 AUGUST, 2011.

Where a petition filed under Order 21 Rule 58 upon determination

of the question the court shall in accordance with such determination.

a) allow the claim or objection and release the property from attachment

either wholly or to such extent as it thins fit; or

b) disallow the claim or objection; or

c) continue the attachment subject to any mortgage, charge or other

interest in favour of any person; or

d) pass such order as in the circumstances of the case it deems fit.

Wherein any claim or objection has been adjudicated upon under

the merits, the order made thereon shall have the same force and be

subject to the same conditions as to appear or otherwise as if it were a

decree. Where a claim or an objection is preferred and the court, under

the proviso to sub-rule(1), refuses to entertain it, the party against whom

such order is made may institute a suit to establish the right which he

claims to the property in dispute; but, subject to the result of such suit,

if any, an order so refusing to entertain the claim or objection shall be

conclusive. As per Rule 58(5) of Order 21 C.P.C., when a claim or

objection is refused to be entertained under Proviso to Rule 58(1), the

petitioner can institute a suit to establish his right in the property

attached, while Rule 58(2) of Order 21 C.P.C., lays down that all

questions, including the right, title or interest in the property arising

between the parties, have to be decided by the Court dealing with the

claim but not by way of a separate suit. Rule 58(4) of Order 21 C.P.C.,
 73

lays down that order passed on such claim is appealable as a decree.

The position, therefore, is, if claim petition filed under Rule 58 of Order

21 C.P.C., is dismissed as per the proviso to Rule 58(1), the claimant

has a right to file a suit to establish his right in the attached property,

and if the claim petition is entertained and disposed of on merits that

order can be questioned only in an appeal but not by way of a separate

suit. The fact that a revision, but not an appeal, is filed by the claim

petitioner against the order of dismissal of his petition clearly shows that

the revision petitioner is also aware that his petition was dismissed

under the proviso to Rule 58(1) of Order 21 C.P.C. held in

SINGIRIKONDA SUREKHA v. G.V.SHARMA AND OTHERS

08.01.2003.

In MR. GURRAM SEETHARAM REDDY VS GUNTI YASHODA AND

ANR. on 13 September, 2004 it is observed that "against an order made

under Rule 58(3) Order, 21 only a Miscellaneous Appeal lies and not a

Regular Appeal, since the application made under Order 21, Rule 58(1)

can in no way be treated as a regular suit. In the light of these two

decisions and the different provisions of the Code referred to herein-

before, we are of the firm opinion that the order made under Rule 58(3)

of Order 21 of the amended Code has only the status of 'deemed decree'

and not a 'decree' by itself and that such orders are not covered by the

definition under Section 2(2) namely of 'decree' so as to attract the

provisions of Section 96 of the Civil Procedure Code and therefore, only a

'Miscellaneous appeal' lies against such 'order' and not a 'Regular

appeal'."

In B. NOOKARAJU VS M.S.N. CHARITIES AND OTHERS on 22

February, 1994 it is observed that Order 21, Rule 58(1) of amended Civil

Procedure Code provides for making a 'claim petition or raising an

 74

objection and when a petition Is so made or an objection raised, the

Court shall proceed to adjudicate the same in accordance with the

provisions contained therein. However, where the claim is made after the

attached property was sold or with unnecessary delay, the same will not

be entertained, in which event as per Rule 58(5), the aggrieved party may

institute a suit, since the petition was rejected at the inception stage.

O.21, R. 58 (2) of amended Code directs that all questions (including

question relating to right, title or interest in the property attached) shall

be determined by the Court dealing with the claim or objection but not

by a separate suit. Under Order 21, Rule 58(3) of amended Code, the

Court is empowered either to allow or disallow the claim or objection or

continue the attachment proceedings subject to mortgage, charge or

other-interest in favour of any person or pass such orders as it deems fit.

According to sub-rule (4) of Rule 58 of Order 21 of amended Code, where

an order is passed under Rule 58(3), the said order will have the same

force and subject to the same conditions as to appeal or otherwise as

though it were a decree. It is however, to be borne in mind that such an

order will have the incidents of decree only, and that by itself, is not a

decree.

Any person other than the J.Dr who is having right or interest is

attached property can file a petition before executing Court. The

objections raised by J.Dr or his representatives are required to be dealt

under Section 47 of CPC. A separate suit for raising objections and

claims are totally barred. Where the property attached before judgment is

sold in execution of another decree the claim of the auction purchaser in

respect of the attached property fallen under Section 47 and not under

this Rule.
 75

It is well settled that an objection to execution filed by a judgment debtor

must be dealt with as an application under Sec.47 C.P.C. and Order 21,

Rule 58 C.P.C., has no application. It is true that by way of extra

precaution mention was made of Order 21, Rule 58 CPC but care was

taken to describe the petition as also one under Sec.47 CPC. But as the

appellant was one of the judgment debtors though to a limited extent the

objection to the attachment of the properties should have been dealt with

under S.47 CPC." observed in AIR 1962 ORISSA 69 [ALLURU

PAPPAYAMMA V. U.V.RAMARAJU]

Order 21, Rule 58. Rule 58 specifically provides that if any claim is

preferred to, or any objection is made to the attachment of, any property

attached in execution of a decree on the ground that such property is not

liable to such attachment, the court shall proceed to adjudicate upon the

claim or objection in accordance with the provisions as contained

therein. Under Sub-rule (2) of Rule 58 - all questions (including

questions relating to right, title or interest in the property attached)

arising between the parties to a proceedings or their representatives

under this rule and relevant to the adjudication of the claim or objection,

shall be determined by the court dealing with the claim or objection and

not by a separate suit. The proviso to Order 21, Rule 58(1) provides for a

situation where the court may not entertain the objection. By virtue of

Sub-rule (5) if on account of the proviso the court refuses to entertain the

objection, the party against whom such order is made may institute a

suit to establish his right. By virtue of Section 47 of the Code of Civil

Procedure all questions arising between the parties to the suit, in which

the decree was passed or their representatives and relating to execution,

discharge or satisfaction of the decree shall be determined by the court

executing the decree and not by a separate suit. The expression used
 76

under Section 47 therefore "parties to the suit". The section would not

apply to a case where an aggrieved person was not a party to the suit. On

the other hand Order 21, Rule 58 contemplates a case where a claim is

preferred or an objection made to attachment on the ground that such

property is not liable to such attachment. It is that court which can

decide the claim or objection held in DR. ANIL NANDKISHOR

TIBREWALA AND ... VS JAMMU AND KASHMIR BANK LTD. AND ...

on 11 July, 2006

Stay of Sale:

Order 21 Rule 58 and Order 21 Rule 59 are inter-linked with each.

Order 21 Rule 59 says.

Where before the clam was preferred or the objection was made, the

property attached had already been advertised for sale, the Court may,

a) if the property is movable make an order postponing the sale

pending the adjudication of the claim or objection, or

b) if the property, is immovable, make an order that, pending the

adjudication of the claim or objection, the property shall not be sold, or,

that pending such adjudication, the property may be sold but the sale

shall not be confirmed, and any such order may be made subject to such

terms and conditions as to security or otherwise as the Court thinks fit.

Claim Petition after sale:

No claim petition can be entertained after sale of the property

attached. In Kancherla Lakshminarayanas case, the Apex Court

considered the meaning of the word sold in proviso (a) to Sub Rule I of

Rule 58 of Order XXI and held that: "Mere holding of auction sale does
 77

not bar the raising of objection to attachment of property. The word sold

in Clause (a) of the proviso to Rule 58 has to be read meaning thereby a

complete sale including the confirmation of the auction. In considering

the time factor of challenging the sale, the locus standi factor on account

of any prior interest of the objector in the suit property has also to be

considered."

In MAGUNTA MINING COMPANY CASE (MAGUNTA MINING COMPANY

VS. M.KODANDARAMI REDDY, [AIR 1983 AP 335] it was observed by

the lordship that:

"whenever a claim is preferred under Order 21 Rule 58

against attachment of immovable properties, the fact that the properties

are sold or that the sale was confirmed, will not deprive the Court of 7 its

jurisdiction to adjudicate upon the claim. It is said that the inquiry into

the claim can be produced with by the trial court or the appellate court

and in the event of the claim being allowed, the sale and the confirmation

of sale shall to that extent be treated as a nullity and no effect, as the

J.Dr. had no title which could pass to the Court auction purchaser."

CONCLUSION:

The main object of Order 21 Rule 58 CPC is to prevent protraction

of litigation and settle finally in execution proceedings instead of filing

separate suit. The rights and liabilities which are sought to be agitated

and questioned regarding title and interest of the property is being raised

and solved in claim petitions.

Presented by

KUM.K.SAILAJA,

JUNIOR CIVIL JUDGE,

SALUR
 78

CLAIM PETITIONS

1. The chapter execution is the most important limb in the civil justice.

Success or failure of Civil justice wholly depends upon the execution of the decrees

properly. Delay in executing the decrees may lead to complicity as such entire code

made endeavour to protect not only the interest of parties to the suit and the execution

but also third parties whose interest are involved without their knowledge and at times

it may prevent the winning party to enjoy fruits of decree. As per Sec.38 of C.P.C., a

decree may be executed either by the Court which passed it, or by the Court to which it

is sent for execution.

2. In normal course, when a suit is decreed automatically the winning party

would apply for execution of decree, but, at times, some third parties will have interest

in the subject matter of the suit, who due to the lack of knowledge could not come on

record during the pendency of the proceedings, can file a petition claiming their rights

in the subject matter of the proceedings.

3. Upon the determination of the questions referred to in sub-rule (2), the

court shall, in accordance with such determination -

(a) allow the claim or objection and release the property from attachment

either wholly or to such extent as it thinks fit; or

(b) disallow the claim or objection ; or

(c) continue the attachment subject to any mortgage, charge, or other

interest in favour of any person; or

(d) pass such order as in the circumstances of the case it deems fit.

4. Where any claim or objection has been adjudicated upon under this rule,

the order made thereon shall have same force and be subject to the same conditions as

to appeal or otherwise as if it were a decree.

5. Where a claim or an objection is preferred and the Court, under the

proviso to sub-rule, refuses to entertain it, the party against whom such order is made
 79

may institute a suit to establish the right which he claims to the property in dispute;

but, subject to the result of such suit, if any, an order so refusing to entertain the claim

or objection shall be conclusive.

6. As seen from order XXI Rule 58 of Code of Civil Procedure disclose as that

all questions including those relating to right, title or interest in the attached property

are required to be decided by the same Court and not by a separate suit, held in

Gurram Sitharamireddy Vs. Gundi Yasodhamma AIR 2005, AP 95.

7. Rules 58 and 59 of Order XI, deal with adjudication of claims preferred to

property attached in execution of decree and all objections to attachment of property.

The object and intention of this rule is to put an end to protraction of execution and to

shorten the litigation between the parties of persons claiming right, title and interest in

the immovable property in execution. Generally, the claims are raised by two categories

of people:

(i) by the parties to litigation or their representatives

(ii) by the third party;

8. The objections made by judgment debtor or his representatives are

required to be dealt under Section 47 of Code. A separate suit for raising these

objections and claims is totally barred. Such objections or claims are necessarily to be

adjudicated under Section 47 of the Code of the Civil Procedure.

9. In order to file a claim petition under Order XXI, Rule 58, CPC valid and

substantial rights in the property which is sought to be attached or otherwise preceded

within execution. Claims which are not recognized in law are not permitted to be raised.

All the persons who on the date of attachment have some interest or in possession of

the property attached could prefer a claim under rule 58 of C.P.C.

 80

10. After the claim petitions are filed, a separate procedure is given to deal

with the same. As if the general suit, a separate trial has to be held to ascertain the

rights of the parties and realities in the claims. As per para 345 of Civil Manual, the

Court before which such a petition is filed shall frame an issue by fixing the burden on

the party who knocked the doors of the court with such a claim petition. Objections

or claims filed against the execution shall not be disposed off without giving opportunity

to the parties thereof to lead evidence.

11. Secondly, in claim petition, the burden is always on the claimant to prove

that as on the date of attachment of property, such party has right, title and interest

over the property or such party has been in possession of the property so attached. If

the claimant succeeded in the claim petition by proving his rights and title, then the

burden, automatically, shifts on the Decree Holder to prove the contra, by establishing

the fact that the objector has no right over the property and he was not the owner or

holds any interest for judgment debtor. In a suit filed by third party to the litigation, the

burden of establishing right, title or interest in the property is upon the plaintiff.

12. Thirdly, a perusal of Rule 58 (1) (2) Order XXI, while entertaining a claim

or objection, the Court must invariably, investigate fully and finally and adjudicate upon

all the questions including the questions of right, title and interest in the attached

property arising between the parties.

13. In so far as dismissal of claim petition or rejection of the claim of the third

parties by the Executing Court, such party who is aggrieved by the orders of the

Execution Court has to bring a suit under sub rule 5 of Rule 58 and such a suit is to be

filed within a period of one year of the final order passed by the Executing Court. The

said suit will be attracted by Article 98 of Limitation Act.

 81

14. As seen from sub rule 3 of rule 58 of C.P.C., the court has either (a) allow

the claim or objection and release the property from attachment either wholly or to

such extent as it thinks fit; or (b) disallow the claim or objection; or (c) continue the

attachment subject to any mortgage, charge or other interest in favour of any person;

or (d) pass such order as in the circumstances of the case if deems fit.

15. An order passed after such investigation determining such question has

the force of a decree and the remedy of the party against whom the order passed is by

way of an appeal and not by way of a suit. An order against the claim petition is

subject to a suit under the present rule, only if the Court has refused to entertain the

claim or objection. Where the property attached is subject to mortgage, charge or

interest in favour of any person, the court can continue the attachment.

16. Some of the sections and rules inter-connected with order 21 Rule 58.

Stay of sale – Order 21 Rule 59: Where before the claim was preferred or the

objection was made, the property attached had already been advertised or sale, the

court may -

(a) If the property is movable, make an order postponing the sale pending the

adjudication of the claim or objection, or

(b) If the property is immovable, make an order that, pending the adjudication

of the claim or objection, the property shall not be sold, or that pending such

adjudication, the property may be sold but the sale shall not be confirmed, and any

such order may be made subject to such terms and conditions, as to security or

otherwise, as the court thinks fit.

17. Adjudication of claim to property attached before judgment –

Order.38 Rule 8: - Where any claim is preferred to property attached before

judgment, such claim shall be adjudicated upon in the manner provided for the

adjudication of claims to property attached in execution of a decree for the payment of

money.
 82

18. Attachment before judgment shall not affect rights of strangers

Order 38 rule 10: -

Attachment before judgment shall not affect the rights, existing prior to the

attachment, of persons not parties to the suit, nor bar any person holding a decree

against the defendant from applying for the sale of the property under attachment in

execution of such decree.

19. Procedure for claim to attached property – Civil Rules of

Practice: -

Rule 246- Claim to attached property: An application by a claimant or objector,

under Rule 58 of Order 21 of the Code shall be made by a verified execution application

entitled in execution petition under which the property in question has been attached

and shall set forth the particulars of the claim in the manner prescribed for the plaint in

a suit as Form No.66.

20. Claim can be preferred even after sale but before confirmation of

sale: - It was held that no claim can be entertained after the attached property is

brought to sale (Damodar Naidu Vs. K.Kodanda Naidu, (2007 (1) ALD 106). But it is

not good law in view of the earlier judgment of Honourable A.P.High Court which was

approved by the Apex Court. The leading Authority from the High Court is in Magunta

Mining Company Case (Magunta Mining Company Vs. M.Kodandarami Reddy, AIR 1983

AP 335) wherein it was held that whenever a claim is preferred under Order 21 Rule 58

against attachment of immovable properties, the fact that the properties are sold or

that the sale was confirmed, will not deprive the Court of its jurisdiction to adjudicate

upon the claim.

21. Burden of proof on the claimant:- The claim petition is to be tried like

a suit and the burden of proof lies on the parties to lead evidence. If the claim

petitioner fails to lead evidence in support of his claim, the Court cannot be found fault

with especially after the original and appellate Court have also confirmed the dismissal.

(Rahatunnisa Vs. Md.Saber Ali Khan, 2008 (5) ALD 615 = 2009 (1) ALT 284).
 83

22. Cause of action to prefer claim: - Cause of action for preferring the

claim under Order 21 Rule 58 arises for a claimant to submit an application only if an

item of property is attached in course of execution and not otherwise, Rule 58 can be

invoked not only in cases of attachment of immovable property but also for movable

properties and Rule 58 of Order 21 does not make any such difference in the nature of

property that was attached (Gopana Subba Rayudu Vs. Pasupuleti Venkata Ramana,

2009 (6) ALD 544).

23. Whether property sold prior to attachment can be sold in

execution of decree: - Order 38 Rule 10 shows that if a person acquires right under a

valid document of a transaction prior to any attachment effected under the provisions

of order 38 rule 5 of CPC., rights of such person are not affected, if he is not a party to

the suit. If such person has already obtained a decree subsequent to attachment of the

property, it does not bar the execution of any decree obtained by him. The Honourable

High Court of A.P (Adinarayana Vs. S.Gafoor Sab, 2004 (2) ALD 736 = AIR 2004 AP

3777) held that the agreement of sale prior to attachment before judgment would

prevail over attachment and therefore, the property cannot be brought to sale.

24. Interest of a vendee under contract of sale is protected by this

provision: - The vendee under a contract of sale cannot be said to have no locus

standi to prefer a claim under rule 58. The question whether the agreement of sale was

a good one entitling the petitioner for specific performance on the basis of that

document is essentially a question to be decided subsequently in the suit. Under such

circumstances there was a cloud on the property and a person like the petitioner who

had the obligation qua the property in the shape of an agreement of sale could not be

held to be an utter outsider having no locus satandi to take the objections. If the

promise gets a conveyance after the attachment, in pursuance of his contract, he takes

a good title inspite of attachment. These observations of the Honourable Supreme

Court made in Kancherla Lakshminarayana ( Kancheral Lakshminarayana Vs.

Mattaparthi Syamala , 2008 (5) ALD 55 (SC) = AIR 2008 SC 2069) would highlight the
 84

importance of the Agreement of sale which is prior in time of the attachment as also

the unconfirmed sale.

25. Claim under Rule 23 (7) of Rent Control Rules, 1961: - There is

significant difference in the enquiry in a claim petition filed under Order 21 Rule 58

C.P.C., and an enquiry under Rule 101 of Order 21 pursuant to the proceedings under

Rules 97 and 99 of the Code, on one hand and the enquiry in the claim petition filed

under Rule 23 (7) of the Rent Control Rules (under the A.P., Building (Lease, Rent,

Eviction), Control Act) on the other.

26. But the enquiry under Rule 58 of Order 21 or rule 101 is almost similar to

a regular suit and the executing Court will decide the right, title and interest of the

person, who makes claim or causes obstruction.

27. Wakf Property – Locus Standi to raise claim: - If Wakf property is

being proceeded against in execution of a decree , it is for the Wakf Board to move the

Tribunal for appropriate relief including the petition under Order 21 Rule 58, if

necessary.

28. Purchaser of joint share prior to final decree cannot object for

execution for recovery of mesne profits against the property of his vendor: -

In the case of a decree passed for payment mesne profits, every item of property that

fell to the share of the individual will be burdened with the obligation to discharge the

mesne profits. The law allows a coparcener to transfer his undivided share or to allot

the transferred item towards the share of the transferor. Till such time, the transferee

does not acquire any absolute right notwithstanding the legality of the transfer.

29. The legal representative of deceased J.Dr can file separate suit

for declaration of their rights in attached property: - The legal representatives

of deceased J.Dr are brought on the record of the EP claiming that the property against

which the execution is being proceeded with, the legal representatives have filed a

separate suit for declaration of their title to the attached property. That suit was

dismissed, on the ground that in the pending EP they can get their right declared and
 85

that by virtue of Section 47 and of order 21 Rule 58, all questions relating to the

execution have to be decided by the executing Court only and a separate suit is not

maintainable.

30. Stay of sale when the application under Rule 58 is filed: - The

provision is rule 59 of order 21. It provides two kinds of orders: (a) If the property is

movable, postponing the sale pending the adjudication of the claim and (b) in case of

immovable property, the property shall not be sold or it may be sold making the sale

subject to confirmation, till the adjudication into the claim is made.

31. Suit to set aside the order in the application under Order 21 Rule

58 is not maintainable – Appeal only lies: - The Full bench Judgment of

Honourable A.P. High Court (Pallmreddy Masthan Reddy Vs. Nellore Finance

Corporation, AIR 1993 AP 29) is the authority on this question and it was referred to in

a later judgment (Kothapalli Koteswara Rao Vs. Murukonda Subbarao, 2002 (6) ALD

609).

32. The suits filed under repealed Rule 63 and the claim petitions disposed of

before the Amendment Act should continue to be governed by the old provisions

unaffected by the amendment. On the disposal of the claim petition which would have

been disposed of in accordance with the old procedure, the right to file a suit

undoubtedly accrued to the party and so he can avail that remedy unmindful of the

amendment.

33. Claim petitions pending on the date of commencement of the Amendment

Act will have to be disposed of by the new procedure laid down by amended Rules 58

and 59 irrespective of prior attachment. That means, instead of summary investigation

into possession, there should be a full fledged enquiry into the right, title and interest.

The order passed therein shall be treated as a decree and appeal lies against it.

34. Same rule applies to claim petitions filed after the Amendment Act.

35. For rejecting the application on ground of delay, Court shall give

opportunity to applicant:- The court has undoubted power under Rule 58 (1) (b) of
 86

Order 21, if the court considers that the claim or objection was designedly or

unnecessarily delayed. But this power cannot, be exercised arbitrarily. Mere delay is not

sufficient, but a designed delay shall be apparent on the face of the record to exercise

such power. If no such fair opportunity is given to the claimant, the court will be

subjected to comment of undue haste. In common law, every person, who approaches

the Court system has a right to know the reasons as to why his cause is not being

entertained by the Court and the reasons as to why he is denied opportunity of

hearing.

36. Order under Order 21 Rule 58 is appealable under Order 41 –

Revision does not lie: - There was a contention that the order passed in a petition

filed under Order 38 rule 8, is subject to revision under Order 43. But this is a

misconception, as held by the Honourable A.P.High Court. It is stated that order 43

rule 1 deals with appeals from orders. It does not cover an order, passed in a claim

petition under Order 21 Rule 58 CPC. An order adjudicating a claim petition whether

instituted under Order 38 rule 8 CPC, an order 21 Rule 58 (4) CPC, as per the provisions

in order 21 rule 58 CPC, is to be treated as a regular decree and it is order 41 CPC but

not Order 43, which deals with the appeal to be filed over such an order. The

Honourable High Court in Ushasri Agro Agencies (Chit Funds), Khammam Vs. Giridhar

Auto Finance (P) Ltd., Khammam, 2003 (2) ALD 370, wherein it was held that the

order passed in a claim petition is appealable as per the provisions of order 41 CPC. A

second appeal therefore, lies to High Court. (Bollapalli Venkata Rao Vs. Ch.Subbaiah,

1982 Ls(SRC) 99C.

37. The proviso to rule 58 (1) states that no claim or objection shall be

preferred if the property has been sold. Then Honourable Apex Court in the matter of

Kancharla Laxminarayana Vs. Mattaparthi Syamala (Air 2008 SC 2069) has clarified

that the word sold used in clause (a) of the provision to rule 58 (1) has to be read as

meaning thereby a complete sale including the confirmation of sale. In view of this

ratio, even after the auction sale, claim or objection would be maintainable till the Court
 87

auctioning the property makes the sale absolute. However, sale once made absolute by

the court, objection or claim will not be maintainable.

CONCLUSION

Thus, the ambit and scope of this provision to avoid unnecessary

complications to protect the rightful owner though he did not participate in the enquiry

or trial, shall not be victimized when he got right and title over the property. For the

sake of such persons, the introduction and implementation of rule 58 of Order XXI, CPC

plays very prominent role in the Civil Justice.

By

E.BHIMA RAO,
JUDGE, FAMILY COURT-CUM-
III Additional District Judge,
VIZIANAGARAM.
 88

TOPIC : CLAIM PETITIONS

WORKSHOP TO BE HELD ON 24-6-2017

Submitted by :

P.Nageswara Rao

JCJ,Gajapathinagaram
 89

CLAIM PETITIONS

PROVISION OF LAW :

Rule 58 of Order-21 of The Code of Civil Procedure,1908 explain

about claim petitions. Rule-58 provides that ----

Rule-58: Adjudication of claims to, or objections to attachment

of, property.-

(1) Where any claims preferred to, or any objection is made to the

attachment of, any property attached in execution of a decree on

the ground that such property is not liable to such attachment,

the court shall proceed to adjudicate upon the claim or objection

in accordance with the provisions herein contained:

Provided that no such claim or objection shall be entertained-

(a) where, before the claim is preferred or objection is made, the

property attached has already been sold; or

(b) where the court considers that the claim or objection was

designedly or unnecessarily delayed.

(2) All questions (including questions relating to right, title or

interest in the property attached) arising between the parties to

a proceeding or their representatives under this rule and relevant

 90

to the adjudication of the claim or objection, shall be determined

by the court dealing with the claim or objection and not by a

separate suit.

(3) Upon the determination of the questions referred to in sub-

rule (2), the court shall, in accordance with such determination,—

(a) allow the claim or objection and release the property from

attachment either wholly or to such extent as it thinks fit; or

(b) disallow the claim or objection; or

(c) continue the attachment subject to any mortgage, charge or

other interest in favour of any person; or

(d) pass such Order as in the circumstances of the case it deems

fit.

(4) Where any claim or objection has been adjudicated upon under

this rule, the Order made thereon shall have the same force and be

subject to the same conditions as to appeal or otherwise as if t

were a decree.

(5) Where a claim or an objection is preferred and the court,

under the proviso to sub-rule (1), refuses to entertain it, the

party against whom such Order is made may institute a suit to

establish the right which he claims to the property in dispute;

but, subject to the result of such suit, if any, an Order so

 91

refusing to entertain the claim or objection shall be conclusive.

NATURE AND SCOPE:

Rule-58 of Order-21 relates to adjudication of claims and objections

to attachment of property in execution proceedings on the ground that

such property is not liable to attachment. It provides that all questions

(including questions of right, title and interest ) are to be settled finally (

and not summarily ) in execution proceedings and not by a separate suit.

It has also been provided that an order passed by the executing court in

adjudication of claims or objections shall have the same force and is

subject to the same conditions as to appeal or otherwise as if it were a

decree. Rule-59 deals with stay of sale during pendency of adjudication. It

states that, where before the claim was preferred or the objection was

raised, the property attached has already been advertised for sale, the

Court may (a) if the property is movable, postpone the sale; or (b) if the

property is immovable make an order that the property shall not be sold or

that it may be sold but the sale shall not be confirmed.

OBJECT:

Rule 58 of Order 21 is a salutary provision relating to any claim that

may be preferred or any objection that may be raised to the attachment of

any property in execution of a decree. Any sale that is held would,

undoubtedly, be subject to the order that may be passed by the executing

court.
 92

This rule thus deals with adjudication of claims and objections to

attachment of properties in execution proceedings. It is under this rule

that a person whose property is wrongfully attached in execution of decree

passed against another is entitled to object to such attachment.

As observed by the Hon'ble Apex Court in Hashim Ali Khan Vs

Hamid Begum , Rule 58 to 63 of Order 21 is a ‗reasonable adjustment‘ of

two principles ; (i) a judgment – creditor should have the fruits of his

decree as quickly as possible; and (ii) a third party should not be harassed

by the attempt of the decree–holder to take property in execution of his

own decree.

Prior to the Amendment, Act 1976, the inquiry was of a summary

nature. The scope of inquiry under Rule-58 was very limited confined to

question of possession as indicated in the rule whereas a substantive suit

could be filed under Rule 63 which was concerned not only with the

possession but also with the title to the property. The said scheme,

however, resulted in protracted litigation. The Law Commission considered

the question and suggested that it was desirable to have all questions as to

right, title and interest settled once and for all in execution proceedings to

be adjudicated finally by the executing court. Necessary changes were

accordingly made.

CONSTITUTIONAL VALIDITY:

Rule-58 of Order-21 cannot be held unconstitutional or ultra vires

Article 14 of the Constitution of India.

 93

In Sargunam Vs Union of India, it was contended by the

petitioner that Rule-58 provided summary procedure and thereby created

discrimination between a party claiming title to a property in a regular suit

and a claimant asserting such right in execution proceedings.

Negativing the contention, upholding the validity of Rule-58 and

explaining the ambit and scope of the provision, the Hon'ble Court stated ―

Several provisions of the CPC were amended by the Central Amendment

Act 104 of 1976 after taking into consideration the recommendations of the

Law Commission. The amendments have been effected in order to render

proceedings effective and to eliminate delays. As a consequence thereof,

Rules 60 to 63 of Order 21 were omitted by the Amendment Act. But

correspondingly, the provisions of Rule-58 have been amplified in order to

afford effective opportunity and remedy to claimants to secure relief under

that rule. After amendment, sub-rule (1) of Rule-58 refers to the right of a

claimant to prefer an objection against attachment of any property on the

ground that it is not liable to such attachment. The sub-rule further says

that when such objection is raised, the Court is bound to adjudicate upon

the claim or objection in accordance with the provisions contained in that

rule. Sub-rule (2) lays down that all questions, including questions relating

to right, title or interest in the property attached, arising between the

parties in the claim petition shall be determined by the Court dealing with

the claim petition shall be determined by the Court dealing with the claim

or objection and the parties need not be driven to a separate suit. Sub-

rule (3) refers to the manner in which the Court should grant relief when it

accepts the claim petition or rejects it. Sub-rule (4) provides that if any
 94

claim or objection is adjudicated upon under the said rule; the order shall

have the same force and be subject to the same conditions as to appeal or

otherwise, as if it were a decree. Lastly, sub-rule(5) states that if a claim

or objection is preferred under sub-rule(1) and the Court refuses to

entertain it, the party aggrieved may institute a suit to establish his right

and subject to the result of the suit, the order refusing to entertain the

claim or objection shall be conclusive.‖ It was rightly observed.

―The rule does not say anything about the enquiry being of a

summary nature. It is open to a party to adduce evidence to provide his

claim and there is nothing in the section to make the Court adopt a

summary procedure, when dealing with an application under Order 21,

Rule 58. On the other hand, sub-rule(4) of Rule 58 makes it clear that the

order shall have the status of a decree and on account of that an aggrieved

party can file an appeal against the order passed in rejection of the claim.

If the claim petition has not been considered on merits, but rejected for

some reason or other, the affected party has got a right of suit under sub-

Rule(5)‖.

“WHERE ANY CLAIM PREFERRED TO, OR ANY OBJECTION IS

MADE” : SUB – RULE (1) :-

Sub-rule (1) of Rule 58 is very wide and comprises claims by third

parties, whether put forward by themselves or on their behalf by the

parties to the suit or their representatives.

Sub-rule (1) does not apply to any claim preferred or objection raised

by any person who is on the record as a party to the suit. But where a
 95

person is not liable under the decree or exempted from execution, he

cannot be treated as a party to the suit.

In Haleem Khan Vs Mukhteshwar the judgment-debtor‘s wife

objected to an attachment of her property on the ground that a decree for

costs was passed against her husband ( one of the judgment-debtors)

personally and though the objector wife was a party to the suit, decree for

costs could not be attached against her share. It was held that the

objection raised by the wife was well founded. The case did not fall under

Sec. 47 but was covered by Rule 58 of Order 21.

“ ANY PROPERTY ATTACHED IN EXECUTION OF A DECREE”:

SUB RULE (1) :

Order 212, Rule 58 deals with ― Adjudication of claims to, or

objections to; attachment of property‘. It is under this rule that a person

whose property is wrongfully attached in execution of a decree passed

against another has right to object to such attachment.

Rule 58 thus applies to any property attached in execution of a

decree. Hence, a claim lodged before the application for execution is

submitted by the decree-holder or before the property is attached is not

maintainable.

The cause of action for filing an application arises only when

attachment is effected. In absence of effective attachment, there is no

occasion to file an application.

 96

The term ―property‖ in Rule 58 of Order 21 is wide enough to include

a debt. Where debt due to defendant judgment-debtor from another

person is attached in execution of decree against the judgment-debtor, the

other person from whom the debt is due may apply under this rule for

removal of attachment. The rule also applies to claims in respect of a

decree attached in execution.

An attachment before judgment becomes one ―in execution of

decree‖ once an application for execution of decree is presented in respect

of such property and accepted by the court. The provisions of Rule 58,

therefore, apply to such properties as well.

“ON THE GROUND THAT SUCH PROPERTY IS NOT LIABLE TO

SUCH ATTACHMENT” : SUB – RULE (1)

Rule 58 presupposes the factum of attachment and the ground of

claim or objection that the property is not liable to attachment. If there is

no attachment, no application lies under this rule. The scope of

investigation is to find out whether the property attached in execution of

decree is or is not liable to such attachment. The objector must establish

that the property belonged to him in his own right and he was possessed

of it. It is not open to the applicant to challenge the decree or the right of

the decree-holder to execute it. Nor he can prefer such application on the

ground that he had not been made a party in the execution proceedings.

The words ―on the ground that such property is not liable to attachment‖

have reference to a case where an objection is against attachment and not

to a claim preferred to the property.

 97

It is, however, open to a claimant or an objector to put forward a

claim or raise an objection under Rule 58 on the ground that there is no

decree or that the court which passed the decree had no jurisdiction to

pass such decree or that the court while seeks to execute the decree has

no jurisdiction to do so. Like wise, a third party whose property is sought

to be attached in execution, in order to avoid attachment, pays into court

the decretal amount, may seek refund of money on the ground that his

property was not liable to attachment. The court in such case may

exercise inherent powers and order refund of amount.

“THE COURT SHALL PROCEED TO ADJUDICATE UPON THE CLAIM

OR OBJECTION” :SUB RULE (1)

Once a claim is preferred or objection is raised against

attachment of property, the court is enjoined to adjudicate the matter

unless the case is covered by proviso to sub-rule (1) of Rule 58,. The court

cannot reject a claim without adjudication merely on the ground that the

question of title or possession is doubtful or complicated in nature.

The distinction between the old provision and new provision,

however, cannot be overlooked. Under the amended Rule 58, the enquiry

is full-fledged and all right, title and interest has to be decided by the

executing court finally.

“WHEN CLAIM OR OBJECTION AGAINST ATTACHMENT WILL NOT

BE ENTERTAINED” : PROVISO TO SUB-RULE(1)
The proviso to sub-rule (1) of Rule 58 enacts that the executing court
shall not entertain a claim or objection against attachment of property in
the following cases.
(i) Before the claim is preferred or objection is raised against
 98

the attachment, the property has been sold; or

(ii) The court considers that the claim or objection was designedly or
unnecessarily delayed, i.e., it has been raised to delay
proceedings.

The moment any claim is lodged or objection is filed, the court is

bound to look into the circumstances specified in the proviso. Ordinarily,

once a claim or objection is entertained under sub-rule(1) of Rule 58, the

court will investigate and adjudicate it. It, however, cannot be laid down

as a proposition of law that in no case the court will exercise power

conferred on it by the proviso to sub-rule(1) even if it is satisfied that the

claim or objection could not have been entertained. Where there is ample

evidence to show that the claim or objection was designedly delayed, the

court will not precluded from exercising statutory power conferred by the

proviso by preventing the claimant or objector from taking undue

advantage of his own wrong, or intentional delay.

The following are certain important principles laid down by

Hon'ble Apex Court relating to Order-21 Rule-58 :

(1) That Claim has to be decided under the rule and not by separate suit –

AIR 1989 Mad. 311.

(2) That Any sale is subject to an order in the claim petition – AIR 1987 SC

1443.
 99

(3) That Claim made in execution is maintainable though no objection was

taken at the time of attachment made before judgment in the case – AIR –

1964 AP 99.

(4) That Claim has to be enquired, though a sale is held or confirmed – AIR

1983, AP 335.

(5) That Where claimant is the ostensible owner, burden is on the

attaching party to show that claimant obtained title under a fraudlent

transaction – AIR 1927 PC 237.

(6) That Where the claim of a third party is opposed by the judgment

debtor, the finding in favour of the claimant is binding on such debtor also

– AIR 1957 AP 61 (FB).

(7) That A garnishee can make the claim, though a party failed to do so –

AIR 1969 SC 762.

END
 100

LIMITATION FOR SEVERAL APPLICATIONS DURING

EXECUTION.

PRADEEPA.P,
JUNIOR CIVIL JUDGE,
KOTHAVALASA.

Introduction:
The Word Execution means “The process for enforcing or giving effect to the Judgment,
order of the court, so as to enable the Decree-Holder to realise the fruits of the decree.
It is a medium by which a Decree-Holder can compel the Judgment-Debtor to carry out
the mandate of the decree or order as the case may be.

There are 3 stages in litigation

1. Institution of litigation 2.Adjudication of Litigation 3.Implementation of Litigation.

The third and last stage of any civil litigation i.e., Implimentation of decree is
known as Execution. Implementationof decree will bedone only when parties has filed
application in that regard, the court has no obligation to implement it on suomoto.
A decree will be executed by the court which has passed the judgment or the
court having competency in that regard.

The Relevant Provisions on Execution in Code of Civil Procedure and Civil Rules of
Practice and Limitation Act are:
1. Sections 36 to 74, Sections 144, 146 & 148 Code of Civil Procedure and Order 21.
2. Section 2 (e), 2 (f), Chapter XVI Rules 205 to 285 of Civil Rules of Practice.
3. Articles: 125 to 129, 134 to 137 of Limitation Act.
As per Rule 2 (e) of Civil Rules of Practice “Execution Petition” means a petition to the
Court for the execution of any decree or order.

As per Rule 2(f) Civil Rules of practice “Execution Application:” means an application to
the Court made in a pending execution petition, and includes an application for transfer
of a decree.

Mode of Execution:

The code lays down various mode of execution. After the decree-holder files an
application for execution of decree, under Section -- Order XXI of Civil Procedure
Code, the executing court can enforce execution. As per Sec.51 of Civil Procedure
Code, 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. But such Execution petition and other execution
 101

proceedings, must be filed within the Limitiation period as prescribed by the Limitation
Act. Limitation must be strictly followed by the court at the time dealing with execution
petition or execution proceedings.

Few Points on Limitation aspects in Execution Proceedings:

As we are well aware that Articles: 125 to 129, 134 to 137 of Limitation Act deals
with Limitation period for execution of decrees. As per Article 136 of Limitation Act, the
limitation period for execution of any decree other than the decree for mandatory
injunction or order of any civil court, must be moved within 12 years from the date of
decree, from the date when the decree or order becomes enforceable or where the
decree or any subsequent order directs any payment of money or the delivery of any
property to be made at a certain date or at recurring periods, when default in making the
payment or delivery in respect of which execution is sought, takes place.

In case, the E.P. is filed by the Decree Holder, within 2 years from the date of
decree, no notice is reqiored under Order XXI Rule 22 of C.P.C.. In case the Execution
petition is filed after lapse of 2 years, Rule 22 notice is mandatory. As per Order XXI
Rule 22(2) of C.P.C. in case if the court feels that unreasonable delay will be casued, in
such case notice under Rule 22 is not necessary.

Section 5 limitation Act is not applicable in EP.

(2005) 4 MLJ 163 (SC) Damodaran Pillai and others Vs South Indian Bank Limited

"An application under Sec. 5 of the Limitation Act is not maintainable in a proceeding
arising under O. 21, of the Code." "A fortiori for the said purpose, inherent power of the
Court cannot be invoked."

(2003) 3 MLJ 590 (Mad) M.Ponnupandian Petitioner in both Vs Selvabakiyam and

others Respondents in both

Civil Procedure Code (V of 1908), O. 21, Rule 106 and Sec.151 — Limitation Act (36 of
1963), Sec.5 — Application to set aside ex parte order under O. 21, Rule 106 —
Application to condone delay in filing said application — Delay cannot be condoned as
Sec.5, Limitation Act not applicable.

United Finance corporation V M.S.M. Haneefa (died) through Lrs.

[AIR 2017 S.C 498]

Sec 5 of limitation Act is not applicable to the proceedings under order 21 CPC.
But there is an amendment in the year 1992 adding sub rule 4 to rule 106 of order 21. In
view of the same, sec 5 of limitation Act is applicable to order 21 rule 105 CPC and for
the petitions filed under order 21 rule 58 CPC also. Our Hon'ble High court finally settled
the law in the following case that section 5 of Limitation Act applicable to the petitions
under order 21 rule 106.
 102

But an application for the endorcement or execution of a decree granting a

perpetual ]injunction shall not be subject to any period of limitation.

Execution of Money Decrees:

In case of payment out of court, as per Order 21 Rule 2(2) of C.P.C., and Art
125 of Limitation Act, to record an adjustment or satisfacation of a decree, when
payment or adjustment are made, it must be recorded within 30 days at the instance of
Decree holder or Judgment Debtor..

Arunlal and others V Union of India and others [AIR 2011 SC 506= (2010) 14 SCC
384]

To record an adjustment or satisfaction 30 days from the date of payment or of a

Decree under order 21 Rule 2 CPC. adjustment . (Article 125 of limitation Act). Order
21 Rule 1 Code of Civil Procedure casts a duty on the decree holder to certify payment
or adjustment of decree to the court. Whereas order 21 Rule 2 CPC affords protection
to the judgment debtor in the event of failure of the decree holder to act under sub Rule
1 and involves a judicial decision by the court whether the payment should be recorded.
This act is at the instance of judgment debtor or a surety for judgment debtor under
order 21 rule 2 (2) CPC. There is no specific article in the Limitation Act for certification
by decree holder under order 21 rule 2 (1) of CPC Recording of settlement of decree
amount out of court to the decree holder, settlement can be recorded by court at the
instance of decree holder or Judgment debtor .

Sk. Hasan Saheb V A.V. Subba Reddy [2009 (6) ALT 242]

Vaniyakandy Bhaskaran Vs Mooliyil Pandimhijarekandy Sheela

[2009 (1) ALT 34 (S.C)] Any payment made by the Judgment debtor to the decree
holder outside the court the same can be certified by the court .

Union Bank of India Rep by General manager V V. Sathyanarayana Construction

company [2008(2) ALT 1 (DB)] According to Article 125 of limitation Act to record the
adjustment or satisfaction of the decree the parties have to file petition with in 30 days
when the payment or adjustment is made.

For payment of the amount due under 30 days from the date of decree.

decree by installments . As per Article 126 of limitation Act, the defendant has to file
petition with in 30 days from the date of decree otherwise petition is not maintainable .

in the case Seelam.Ramadevi Vs. Gadiraju.Yanadi Raju at para 12, our Hon'ble
High Court held as follows

Having considered the scope and object of the above provision it was held by
Division Bench of this court in Vemula SrinivasuRao Vs Thumepalli Venkateswarlu
that if the executing court is empowered to permit payment of decretal amount by
 103

installments the purpose and object of the period of limitation of 30 days prescribed in
Article 126 of Limitation Act will be defeated and it will be open to any judgment debtor
to move executing court at any stage of the execution proceeding to permit him to pay
the decreetal amount by installments which is contrary to provision of order 20 rule 11 of
CPC and it was concluded by Division Bench that the executing court has no power to
grant installment under the provision of Code of civil procedure.

Shaik. Mohammad Rafiuddin V Gummala.Narayana Reddy[2017(3) A L T 268]

Moguluru Easwaraiah V Vallapalli Venkataramaiah [2006 (1) ALT 193]
For payment of the amount due under 30 days from the date of decree by
installments . Article 126 of limitation Act.The defendant has to file petition with in 30
days from the date of decree otherwise petition is not maintainable .

Section 47 Vs Order 21 Rule 2 CPC :

Any settlement or adjustment or discharge of decree has to be certified by the

court under Order 21 Rule 2 CPC. Time limit for invoking Order 21 Rule 2 CPC is 30
days from the date of payment, adjustment or satisfaction (Article 125 Limitation Act).

The court cannot recognize any such adjustment or satisfaction if it is not

certified under Order 21 Rule 2. This prohibition is made under Order 21 Rule 3 ―A
payment or adjustment which has not been certified or recorded as aforesaid shall not
be recognized by any court executing the decree‖

Petitions will be filed u/s 47 claiming adjustment or satisfaction or record the said
adjustment or satisfaction u/s 47 CPC. Since specific provision under Order 21 Rule 2
and Rule 3 CPC is there the general provision of Sec. 47 not applicable.

2006(3) MLJ Page 57 (SC) Padma Ben Banushali and another Vs Yogendra
Rathore and Others

―Uncertified adjustment out of court cannot be considered u/s 47 CPC.‖

Rafiqee V Syed. Waliuddin [AIR 2003 S.C 3789]

Uncertified adjustment out of court cannot be considered under sec.47 CPC,

since specific provision under order 21 rule 2 is there, the general provision of sec.47 is
not applicable.

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.
To order arrest of the J.Dr who is a Government Servant, a seven days prior
notice must be given to the Head of the Institution.Rule 241 civil rules of practice Even
before sending the J.Dr to civil prison, J.Dr can be released on furnishing security and
also can be kept in court guard custody for not more than 15 days, to enable J.Dr to pay
the decretal amount.
 104

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.
Time limit for detention of an arrested JD in court Not exceeding 15 days. 1st
proviso to premises under custody of officer of court. Or 21 R 40 CPC. Form No. 14 A .
A JDr released in the above contingencies shall not be discharged from his liability but
shall not be liable to be rearrested under the same decree.

JJDr released under this section may be re-arrested but the period of his
detention in the civil prison shall not in the aggregate exceed that prescribed by Sec.58
(Sec.59(4)). If JDr aapears in obedience to the Notice – Procedure:

(Or. 21 R. 40)

When a JDr appears before the Court in obedience to a notice under Rule 37, or
is brought before the Court after being arrested in execution of a decree for the payment
of money, the Court shall proceed to hear the decree holder and take all such evidence
as may be produced by him in support of his application for execution and shall then
give the judgment debtor an opportunity to showing cause why he should not be
committed to the civil prison.

Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to
the provisions of Section 51 and to the other provisions of this Code, make an order for
the detention of the judgment debtor in the civil prison and shall in that event cause him
to be arrested if he is not already under arrest: Provided that in order to give the JDr an
opportunity of satisfying the decree, the Court may, before making the order of
detention, leave the Jdr in the custody of an officer of the Court for a specified period
not exceeding fifteen days or release him on his furnishing security to the satisfaction of
the Court for his appearance at the expiration of the specified period if the decree be not
sooner satisfied.

In B. Gangadharam Vs D. Shiva Shankar Reddy, 2011 (3) ALD 831, our Hon’ble High
Court held that ―it is only in exceptional cases where the executing court satisfied that
the Judgment Debtor is absconding from local limits of the Court that it can dispense
with the notice under order 21 rule 22 of CPC.

In S. Ismail and another Vs Agraseni Chit Funds Pvt., Ltd., 2004(5) ALD 138,
wherein our Hon’ble High Court held that ― the executing Court shall follows the
procedure prescribed under rule 40 of order 21 and it cannot straight away order the
arrest under 21 rule 37 of CPC.

PERIOD LIMITATION WITH REGARD TO SALE OF THE MOVABLE AND

IMMOVABLE PROPERTY:

A decree may be executed by attachment of any property either movable or

immovable, by attachment and sale (or) sale without attachment. Sectios 65 to 73 and
rules 64 to 94 or Order 21 deals with subject relating to sale of movable or immovable
proeprty.
As per Rule 64 of Order 21 of Civil Procedure Code, the court has power to sell
the property which is in its custody under an attachment under Sec.60 of C.P.C. As per
Order XXI Rule 65 of Civil Procedure Code, the person to whom court may appoint an
officer , will be charged to sell the property as the representative of the court and will
sell the proerty for executio of decree.
 105

The proclamation of sale , is a kind of order or declaration, which opeates as

notice withregard to sale. The sale proclamation can be in writing or by customary
mode.

As per Rule 68, the consent of the Judgment debtor can take place within 15
days in case of immovable property, within 7days incase of movable property from the
date of proclamation in the courthouse. Sale can be conducted immediately in case of
if the property is perishable in nture.
As per rule 69 or Order 21 od Civil Procedure Code, after issuance of
proclamation and before sale, the JDR pays the amount, or has partly promised to pay
on the given date before completion of public order, in case there is justified reason, in
those circumstances, the court may postpone the sale for a period of 30 days. Fresh
proclamation has to e issued and again the process of rule 67, 68,69 will follow. But in
case of the death of Judgment Debtor before the date of sell or after the issuance of
proclamation or on the date of auction, the sale cannot be postponed.
Sale Adjournment petitions Order 21 Rule 69 CPC.:

Long adjournment of sale should not be allowed. The petitioner must fore go fresh
proclamation when seeks sale adjournment under Order 21 rule 69 CPC it should be
mentioned in the affidavit and petition. Short adjournment like two weeks or three weeks
alone shall be granted for sale. If substantial amount is paid as part satisfaction.
In case of declaration of sale, immediately the puchaser has to deposit 1/4th of
sale proceeds. The remaining 3/4th sale proceeds has to deposit within 15days from
the date of sale. The payment for atta ie., must be witin two days or period if so fixed
by the judge, except sale warrant(Rule 144 of Civil Rules of Practice). Sale
proclamation batta has to be paid within twodays from the date of order along with S.P.
copies and tom tom charges In case of Movables, time for payment of sale warrant
batta, must be a week before date fixed for sale. It is mandatory provision. Rule 187
CRP.

Return of decree of other courts entered in CR 15 Within 3 days after expiry of 1

year if execution is not levied in execution court. Time from the date of receipt of other
court decree. (Date of transmission is not the criteria. Rule 138 CRP)

Set-aside Sale in Execution:

To set aside the sale in execution of decree, the JDR has to move an application
i.e., E.A. under Order 21 Rule 89 and 90, Sec.47 of C.P.C, within in 60 days frin tge
date if sale. (date of sale is inclusive). In case to set aside sale incase of debts due on
any time before confimation of Mortgage deed of sale as per Order 34 Rule 5 CPC., as
per Order 21 Rule 99 of CPC., the property must be redelivered within 30 days from the
date of dispossession (Artcile 128 of Llimitation Act), for removal of resistance to
delivery under Order 21 Rule 97 of C.P.C .

Ganapath Singh (died) by LR's V kailash Sankar [AIR 1997 S.C 1443]

For delivery of possession under order 30 days from the date of dispossession 21 Rule
99 CPC (Article 128 of Limitation Act). Article 128 of Limitation Act deal with 30 days
period of limitation for filing an application for possession who is dispossessed from
immovable property and disputing the right of decree holder or a purchaser at a sale in
execution of decree. A separate suit for said purpose is not maintainable as per order
21 Rule 101 CPC.

If for any reason a stranger to the decree is already dispossessed of the suit
property relating to which he claims any right, title or interest before his getting any
 106

opportunity to resist or offer obstruction on spot on account of his absence from the
place or for any other valid reason then his remedy would lie in filing an application
under order XXl, rule 99, cpc claiming that his dispossession was illegal and that
possession deserves to be restored to him.

Banvarlal Vs Sathyamani [AlR 1995 S.C. 358]

The Decree holder can file any number of application for delivery of property under Rule
95 provided they are within limitation.

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.
Adding of Legal Representatives in E.P:

If the Judgment Debtor died pending E.P., then application need be filed
under Section 50 of C.P.C. Order 22 Rule 12 C.P.C. to be taken notice of. Orde 22
Rule 3, 4 ad 8 not applicable to Execution Proceedings. No abatement in E.P. Hence
reasonable time be given to implead Legal Representatives and if not E.P. may be
dismissed for default. Since there is no abatement on non-impled of Legal
Representatives, fresh EP may be filed.

AIR 1932 Mad 73 FB MH (Venkatachalam Vs Ramaswami)

―Rule 12 of Order 22 of CPC is envisaged to be of benefit to a decree holder. When

execution proceedings are pending, on account of death of party to proceedings, it does
not abate. The parties are entitled to be impleaded when execution proceedings are
pending. There is also no bar to file fresh application for execution also.‖

1998 (1) CTC 509 MH(UTHIRAPATHY VsASHRABALI & OTHERS)

― This rule is intended to apply to the 'Proceedings under the Act : Execution petition by
virtue of fiction attached to it under sec.18 of the Act, is one under the code of civil
procedure. When Order of eviction is passed under secs. 10, 14, 15, 16 and 17 it
ceased to be ceased to be order under the Act. It has reached a stage of execution. So,
rule 25 of the Act is not applicable to proceedings of eviction. According to Rule 12 CPC
also, the abatement of petition in execution does not arise under Order 22 of CPC‖.
Legal representatives are entitled to come on record in execution petition at any time.
However, when execution petition is pending and, if the death of party is informed to
Court, the Court may fix a (date) time to implead the L R's. If petition is not filed, the
 107

Court can dismiss the petition for default. Fresh application of execution is a
continuation of execution petition.‖

STAY OF PROCEEDINGS:

This is where the proceedings get stuck without any progress. If we strictly follow
the provisions and the decisions of the HC and SC the delay would be considerably cut
down and the justice will be done in time.

1. Court cannot stay execution of its own decree: Only under Or 41 rule 5 CPC stay can
be granted by trial court, but for fixed time only
2. Or 21 rule 26 CPC can be invoked only by transferee court.
3. Or 21 rule 29 CPC for specific purpose when another suit is pending against the DH
filed by JD or other person interested in the same subject matter.

AIR 1978 MAD 269 (after amendment transferee court can also pass stay orders).
Stay by appellate courts Or 41 rule 5,6 CPC. No stay can be granted if appeal is filed
with delay condonation petition – Or 41 rule 3A. In the absence of stay, EP must be
proceeded with. Normally the parties would approach the executing court for stay u/s
151. But inherent powers cannot be invoked. As per (2005)4 MLJ 163(SC)
(Damodaran Pillai and others Vs South Indian Bank Ltd). If court is satisfied that
appeal is pending then no purpose in keeping the EP pending. EP can be dismissed
with liberty to file fresh EP after disposal of appeal. The limitation will be saved since the
decree will merge with the appellate court decree and the time will run afresh after the
disposal of the appeal.

Insolvency

In cases of Insolvency petitions pending in other courts. Pendency of I.P.

Proceedings is not a ground to stay the E.P. Executing court cannot stay the
proceedings since I.P. Is pending. The J.D. must obtain interim protection order from
the Insolvency Court.

2008 (4) LW 1068 Saravanan Vs Raju (Madurai Bench)

―CPC 51, 55, 58 Order 21 Rule 37, 40 CPC Merely because the J.D. Presented
an I.P. Before the Insolvency Court, the executing court need not stay in proceedings in
the absence of any adjudication by the Insolvency court. The J.D. Must obtain interim
protection order from the court.‖

Claim Petitions:

Ch. Krishnaiah Vs C.H. Prasad Rao [2009 (6) ALT 82( F.B)]

Adjudication of claims to, or objections to attachment of property under order21 rule 58

of Code of Civil Procedure.

Order 21 rule 58 deals with adjudication of claims preferred to property attached

in execution of decree and all objections to attachment of property. The object of the
rule is to put an end to protraction of the execution and to shorten the litigation between
the parties or persons claiming right, title and interest in the immovable property in the
execution. These objections and claims are usually raised by two categories of persons:

1) by the parties to litigation or their representatives;

2) by the third party.

 108

The objections made by judgment debtor or his representatives are required to

be dealt under section 47 of Civil Procedure Code. A separate suit for raising these
objections and claims is barred. Such objections and claims are required to be
adjudicated under section 47 of Code of Civil Procedure.

For raising a claim under order 21 rule 58, the claimant must possess valid and
substantial rights in the property which is sought to be attached or otherwise proceeded
with in execution. Claims which are not recognized in law are not permitted to be raised.
All the persons who on the date of attachment have some interest or in possession of
the property attached could prefer a claim under rule 58.

Maintainability of the claim petition after sale:

There are divergent opinions on the maintainability of the claim or objection

petition after sale. Some decisions held that it is maintainable and others that it is not.
The proviso to rule 58(1) states that no claim or objection shall be preferred if the
property has been sold.

The Hon'ble Supreme court in the matter of Kancherla Laxminarayan V.

Mattaparthi Syamala (AIR 2008 SC 2069) has clarified that the word sold used in
clause (a) of the proviso to rule 58 (1) has to be read as meaning thereby a complete
sale including the confirmation of sale. In view of this ratio, even after the auction sale,
claim or objection would be maintainable till the court auctioning the property makes the
sale absolute.

For raising a claim under order 21 rule 58, the claimant must possess valid and
substantial rights in the property which is sought to be attached or otherwise proceeded
with in execution. Claims which are not recognized in law are not permitted to be raised.
All the persons who on the date of attachment have some interest or in possession of
the property attached could prefer a claim under rule 58.

In the Limitation Act no limitation is prescribed to file claim petition.

To decide all issues relating to the executability are to be tried under Section 4 7 itself –
not by separate suit [2009(9) SCC 2 8]

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 proceedings provide effective remedies to
decree holders, Judgment debtors and also to the third parties. With referance to the
latin maxim ― vigilantibus et dormientibus jura subveniunt‖, which means that law
concerns of those who are awake but not asleep on their rights. In the same manner
when law provides certain limitation period to receive the furits of decree by way of
execution,in case of failure to avail the same within limitation period, the parties has to
lose their rights against the opposite party.

-*-*-*-
 109

LIMITATION FOR SEVERAL APPLICATIONS DURING EXECUTION

Presented by : Sri K.Rambabu,

Senior Civil Judge,

Vizianagaram.

The object of Law of Limitation is based on two broad considerations. (1)

There is a presumption that a right was not exercised for a long time for non existence

(2) it is necessary that title to property and matters of right in general should not be in a

state of constant uncertainity, doubt and suspense.

The object of Law Limitation is to prevent disturbance, or, deprivation of

what may have been acquired in equity and justice by long enjoymnent or what may

have been lost by party‟s own inaction, negligence, or, laches. The provisions of the

Limitation Act must receive construction which language in its plain meaning imports

and considerations of convenience or hardship are to be ignored.

According to the decision reported in AIR 1992 SUPREME COURT 1815,

which is equivalent to 1993 (1) An.W.R 104 (SC),

“The rules of limitation are not

meant to destroy the rights of the parties. Section 3 of the
Limitation Act only bars the remedy, but does not destroy
the right which the remedy relates to”.

If a competent civil court finds that an application which comes up for

consideration before it, has been filed after the period of limitation, the court is bound to

dismiss such application though the proceeding of limitation has not been set up as a
 110

defence. Therefore, the bar of limitation does not depend on its being set up by a party.

This has to be borne in mind by the courts.

According to Sec.5 of the Limitation Act which comes up very frequently

before the courts, it is necessary to note that Sec.5 of the Limitation Act only apply to

appeal or application. Ofcourse, the applications under Or.21 C.P.C, are excluded. It is

abundent clear that Sec.5 of the Limitation Act will not apply to the applications under

Or.21 CPC. But, according to the decision of the Hon‟ble High Court of Judicature at

Hyderabad for the State of Telangana and State of Andhra Pradesh, whenever any

application is filed under Or.21 Rule 106 C.P.C, for setting aside any exparate order on

execution side, Sec.5 of the Limitation Act is applicable only to the limited extent

provided the party has shown the sufficient cause. This is a judicial precedent.

In this connection, in disposing of an application under Or.21 Rule 106

CPC, discretion will have to be exercised not in an arbitrary, or fanciful manner, but only

on judicial principles.

The important provision under Sec.14 of the Limitation Act which deals

with exclusion of time for the purpose computing the period of limitation. It says that

the time during which the plaintiff has been prosecuting with due deligence another civil

proceeding, against the defendant shall be excluded where the proceeding relates to the

same matter in issue and he prosecuted it in good fath in a court which, from defect of

jurisdiction or other cause of a like nature, is unable to entertain it. The effect of this

section is not to render dthe suit, petition, or, application filed in proper court, a

continuation of the original suit which could not be entertained due to defect of

jurisdiction. As such, there is a clear distinction between Sec.5 and Sec.14 of the

Limitation Act.

PERIOD OF LIMITATION IN FILING APPLICATIONS:

1. To record an Thirty days When the payment or adjustment is

adjustment or satisfaction made.
 111

of a decree
According to Or.21 Rule 2 CPC any payment made, or,
adjusted outside the court towards a claim pending
before a civil court shall be certified by the
plaintiff, or D.Hr and it shall be recorded by the
court within 30 days from the date of payment or,
from the date of adjustment, otherwise beyond 30 days
it can be barred according to Article 125 of the
Limitation Act.
2. Whenever a decree is Period of From the date of decree for its
pased or whenever the J.Dr limitation is 30 enforcement, according to Article
is direceted to pay the days 126 of the Limitation Act.
decretal amount by
instalement
3. To set aside a sale in 60 days From the date of sale according to Article
execution of a decree 127 of the Limitation Act.
including any application
by the J.Dr.
4. For execution of Within 30 days From the date of obstruction as per Article
recovery of possession 129 of the Limitation Act.
after removing the
resistence or obstruction,
or delivery of immovable
property in exedcution of
decree is
5. According to Article One year From the date when the sale becomes
134 for delivery of absolute.
possession by a purchaser
of immovable property at a
sale in execution of a
decree
6. In order to enforce a 3 years
deceree granting mandatory
injunction from the date
of decree or whether the
date is fixed for
performance is
7. According to Article 12 years Where the deceree or order becomes
136, for execution of any enforceable.
decree is
But, the articles do not speak about the olimitation
period for enforcement of perpetual injuunction or
permanent injunction.
8. According to Article Three years
135 of the Limitation Act
the period is given for
enforcement of decree in
respect of mandatory
injunction is
 112

The limitation has to be computed from the date of appellate decree as per

the decision in between P.RAMACHANDRAIAH VS. SESHAMMA reported in 1978

(2) APLJ 1 (DB).

After period of limitation prescribed by Article 127 of the Limitation Act

to set aside the sale, the executing court derives no jurisdiction to entertain an application

for condonation of delay, as per the decision in the case of MOHAN LAL VS. HARI

PRASAD YADAV 1994 (2) UJ 458.

Limitation for execution of a partition decree starts from the date of

passing of final decree, as held in the case of HAMEED JOHARAN (DIED) VS.

ABDUL SALAM (DIED) 2001 93) CCC 196 (SC).

Article 137 of the Limitation Act is a general provision setting limitation of

three years where no period of limitation is provided elsewhere in the Act from the right

to apply accrues. Limitation Act forms a complete code by itself and out side it there is

no law of limitation excepting special provisions in Special Acts.

The Limitation Act does not apply to the proceedings before the Tribunal

as held in AIR 1970 SC 209.

As such, the law relating to Limitation has got its own importance and

significance in dealing with applications during execution by the executing courts.

***

Vizianagaram SIGNATURE OF PRESENTING OFFICER

dated: 20.6.2017 SENIOR CIVIL JUDGE,
VIZIANAGARAM.
 113

LIMITATION FOR SEVERAL APPLICATIONS DURING EXECUTION

INTRODUCTION

Execution - Meaning:-

Execution is the last stage of any civil litigation. Execution enables the decree holder to

recover the fruits of the Judgment. The term execution has not been defined in the court. The

expression execution simply means the process for enforcing or giving effect to the Judgment of

the court.

Section 36 to 74 and Order 21 of the Civil Procedure Code dealt with the Principles

governing execution of decree and orders. The execution is completed when the decree holder

gets money or other thing awarded to him by the Judgment, decree or order of the court. All

proceedings in execution commencing with the filing of application for execution, such

application made to the court, who passed the decree or where the decree has been transferred

to another court. Section 38 of the court specified that a decree may be executed either by the

court, who passed it or by the court to which it is sent for execution.

Modes of Execution:-

Section 51 to 54 of the civil procedure code describes procedure in execution or mode for

execution.

Mode of executing decree U/.s.51 C.P.C

 by delivery of any property specifically decreed, (Property may be movable or immovable)

 by attachment and sale or by sale without attachment of any Property,

 by arrest and detention in prison(for such period not exceeding the period specified in
 114

section 58, where arrest and detention is permissible under that section).

 by appointing receiver:-; or

 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).

Execution-Limitation:-

Limitation must strictly followed when filing various application for execution.

Section 5 limitation act is not applicable in execution proceedings.

Vigilantibus nor dormientibus Jura Subvenient”

Which means the Law helps the vigilant, but not who sleps over their rights.

The Limitation Act is an exhaustive Statute governing the law of limitation in India in

respect of all matters specifically dealt with by it and the Indian Courts are not permitted to

travel beyond its provisions to add or to supplement them. It bars the remedy but does not

destroy the right. The provisions of the act have to be construed strictly.

The Limitation Act 36 of 1963 came into force on 5th October 1963 is to consolidate and

amend the law for the limitation of suits and other proceedings.

It is also treated that the provisions of the Code of Civil Procedure as also the Limitation

Act have all along been considered to be supplemental to each other. It is also well-settled that

execution of the decree would mean the enforcements of the decree by what is know as

process of execution. All processes and proceedings in aid to or supplemental to execution

 115

would come within the meaning of the word ―execution’ within the meaning of Section. 15 (1) of

the Limitation Act.

There are two divisions in the Law of Limitation. One covered by Sections and the other

Articles. The Section in the body of the Limitation Act govern and control the application of the

articles in the schedule except so far the language of a particular article clearly precludes the

application of any such. Section. 151 of the Code of Civil Procedure Code be invoked to by-

pass the limitation prescribed under the Limitation Act. Limitation Act is exhaustive and cannot

travel beyond is provisions.

For every recurring infringement as long as the application was filed within time the

executing Court is duty bound to give relief to the decree holder.

Section 5 of the Limitation Act providing condonation of delay to not apply to execution

proceedings. But, Sect. 5 of the applicable to an order over an order passed under O. XXI,

CPC.

The Hon’ble HIGH COURT OF ANDHRA PRADESH (D.B.) in a case of Krishnaigh Vs.
Prsad Rao, reported in 2009 Law Suit (AP) 144 of Para Nos. 20 and 21 pleased to be held as
follows :-

―(20) it could be seen from the above that no attempt was

made to amend Rule 106 or Order XXI of the Code of Civil
Procedure………. However, both the Amending Act of 16 of 1999
and 22 of 2002 were brought into force with effect from 1.7.2002
…. From the above, it could be seen that Rule 106 of Order XXI of
the Code of Civil Procedure was not subject to any amendment.
Therefore, by virtue of Section 32 of Act 46 of 1999 and Section 16
of Act 22 of 2002 and by necessary implication, the inevitable
construction should be that the amendment made by the High
Court of Andhra Pradesh through the Judicial Notification, as
extracted supra, already remains unsettled and very much in tact.

Therefore, we hold that notwithstanding the repeal provisions in

1999 and 2002 amendments to CPC, Order XXI Rule 106 (4) of
 116

CPC as inserted by the High Court in excise of powers under

Section 122 of CPC enables a party to proceedings to file
application under Section 5 of Limitation Act seeking condonation
of delay in filing an application to set aside exparte order passed
under Order XXI Rule 10 6(1) of CPC.‖

UNDER LIMITATION ACT :-

Article 125 :- Limitation for Recording Adjustment or Satisfaction of Decree :

Description of suits Period of Limitation Time from which period

beings to run

125. To record an adjustment 30 days When the payment or

or satisfaction of a decree. adjustment is made.

Order XXI, Rule I of Code of Civil Procedure cast a duty on the decree-holder to certify

payment of adjustment of decree to the Court. Whereas, O.XXI, R.2 CPC affords protection to

the judgment-debtor in the event of failure of the decree-holder to act under sub-rule (1) and

involves a judicial decision by the Court whether the payment should be recorded. This Act is

instance of judgment-debtor or a surety for judgment-debtor under O.XXI, R. 2(2) CPC. There is

no specific Article in the Limitation Act for certification by decree holder under O.XXI, R.2 (1) of

the CPC. This Article is inapplicable to an adjustment made or agreement entered into after the

date of the decree of the Court of first instance but before the date of appellate decree

dismissing the appeal. This article is not applicable to application made under Insolvency Acts.

The plea of fraud save limitation under this Article. From the date of dismissal of decree

holder’s application for recording adjustment, it saves limitation for judgment debtor if he makes

an application for the same purpose within the period of limitation prescribed by the Article

(Refer O.XXI, R.1 and 2 CPC)

Article 126 :- Limitation for installment payment.

Description of suits Period of Limitation Time from which period

beings to run
 117

125. For the payment of the 30 days The date of the decree.
Amount of a decree by
installment.

Article 126 of the Limitation Act deals with the period of thirty days from the date of

decree for the payment of the amount of a decree by installments. An application to that effect

should be made within the period of thirty days from the date of decree praying for payment of

decretal amount by installment to the Court which passed the decree. If the Court, has

entertained and decided the application filed beyond thirty days, it is deemed that the

application was filed within time and the order is legal.

Case Law under Article 126 of Limitation Act.

The Hon’ble Andhra High Court in case of Seelam Ramadevi Vs. Gadiraju Yanadi Raju on
2 May, 2008 at Para No. 12 pleased to held the follows :-

―12. Having considered the scope and object of the above

provisions, it was held by a Division Bench of this Court in Vemula
Srinivasa Rao Vs. Thumepalli Venkateswarlu that if the Executing
Court is empowered to permit payment of decretal amount by
installments the purpose and object of the period of limitation of 30
days prescribed in Article 126 of the Limitation Act will be defeated
and it will be open to any judgment-debtor to move the Executing
Court at any stage of the execution proceedings to permit him to
pay the decretal amount by installments which is contrary to the
provisions of Order 20 Rule 11 of C.P.C., Thus, it was conducted by
the Division Bench that the Executing Court has no power to grant
installment under the provision of the Code of Civil Procedure.

Article 127 :- Limitation setting aside Court sale.

Description of suits Period of Limitation Time from which period

beings to run

125. To set aside sale in 60 days The date of the decree.

execution of a decree,
including any such application
by a judgment debtor.

Article 127 of the Limitation Act provides a period of sixty days for setting aside also from

the date of sale if it is voidable. The period of 60 days was substituted for the words ―thirty

days‖ by Amending Act 1047 of 1976 (w.e.c.1-2-1997) as per Sec. 98 of the Principal Act. This
 118

Act. 127 is applicable to a case under O.XXI, Rr. 72, 89 to 91 or is one under Sec. 47 CPC. An

application to set aside sale is not necessary if the sale is void and hence this Article has no

application to such cases. To set-aside sale as void, 137 is applicable. An application by the

purchaser on the ground that judgment-debtor has no saleable interest in governed by this

Article. The period of limitation fixed by this Article cannot be enlarged. In case of any special

law prescribing limitation, the application to avoid to sale is governed by that local or special law

(Refer Sec. 47 O.XXI, Rs. 72, 90 and 91 CPC)

Executing Court cannot conform sales before expiry of 60 days time prescribed under

Art. 127 of Limitation Act, 1963.

The case law under Article 127 of Limitation Act.

The Hon’ble Apex Court of India, in case of Ram Karan Gupta Vs. J.S. Exim Ltd n& Ors on 3

December 2012 at Para No.17 pleased to held as follows :-

― 17. Law Commission in its 89th report, para 42, 35 page 219, Law
Commission report 139th report para 3.1 to 3.6 and 4.1 to 4.5
considered the period of limitation of thirty days for depositing the
amount to set aside sale as specified in sub-rule (2) of Rule 92 and
suggested enlargement of period of sixty days so as to be
consistent with Section 127 of the Limitation Act, Following that the
second proviso to sub-rule (2) of Rule 92, as inserted by the Code
of Civil procedure (Amendment) Act, 2002, clarified that the
amendment would also apply to all those cases where the period of
thirty days within which the deposit was required to be made had
not expired before the commencement of the Amend Act 2002.
The amendment which came into force w.e.f 01.07.2002 extends
the period of deposit up to sixty days, which is in conformity with
Section 127 of the Limitation Act, as amended by the Code of Civil
Procedure (Amendment) Act 1976.‖

Article 128 :- Limitation for possession by dispossessed purchaser.

Description of suits Period of Limitation Time from which period

beings to run

125. For possession by one 30 days The date of the decree.

disposed of immoveable
property and disputing the
right of the decree-holder or
purchaser at a sale in
execution of a decree.
 119

Article 128 of the Limitation Act deal with thirty days period of limitation for filing an

application for possession who is disposed of immovable property and disputing the right of the

decree-holder or purchaser at a sale in execution of a decree. A separate suit for such purpose

is not maintainable as Order.XXI. R.101 CPC.

Article 129 :- Limitation for possession after removal of obstruction.

Description of suits Period of Limitation Time from which period

beings to run

129. For possession after 30 days The date of resistance of

removing resistance or obstruction .
obstruction to delivery of
possession of immoveable
property decreed or sold in
execution of a decree.

Article 129 deals with the case of resistance or obstruction to the delivery of
possession of immovable property. As period of thirty days is provided for removal of such
resistance of obstruction (Refer O.XXI. R. 97 CPC)

Article 134 :- Limitation for delivery of possession by Court Auction Purchaser.

Description of suits Period of Limitation Time from which period

beings to run

125. For delivery of One year When the sale becomes

possession by a purchaser of absolute
immoveable property at a sale
in execution of decree.

Article 134 provides a period of one year for delivery of possession by a purchaser of

immovable property at a sale in execution of a decree. The purchaser may be either a decree-

holder or any other person. Suit for delivery of possession of property purchased at a Court

auction was converted into an application under Section 47 by the Court is covered by this

Article. Article 135 :- Limitation for Execution of Decree of mandatory injunction.

Description of suits Period of Limitation Time from which period

beings to run

125. For the enforcement of a 3 years The date of the decree or

decree granting a mandatory where a date is fixed for
injunction. performance, such date.
 120

Article 135 is applicable only for enforcement of a decree granting mandatory injunction

and does not apply to prohibitory injunction. For the execution of compromise decree in a suit

for mandatory injunction this Article is applicable. In case of decree for removal of debris from

land two months time granted by Court and in such cases the limitation beings to run after the

expiry of two months from the date of the decree when it becomes executable.

Period of 3 years limitation is applicable as per Art. 135 & 136 of Limitation Act in

enforcing the order of injunction or mandatory injunction.

Article 136 :- Limitation for Execution of Decree other than mandatory Injuction.

Description of suits Period of Limitation Time from which period

beings to run

125. For the execution of any Twelve years Where the decree or order
decree (other than decree becomes enforceable or
granting a mandatory where the decree or any
injunction) or order or any subsequent order directs any
Civil Court. payment of money or the
delivery of any prop0erty to be
made at a certain date or at
recurring periods, when
default of delivery in respect of
which execution is sought take
place; Provided that an
application for the
enforcement of execution of a
decree granting a perpetual
injunction shall not be subject
to any period of limitation.

Article 136:-

Under article 136 the period of limitation for an application for the execution of any

decree (other than) a decree granting a mandatory injunction or order of any civil court is 12

years and the time of limitation starts to run from the date "when the decree or order

becomes enforceable or where thedecree or any subsequent order directs any payment

of money or the delivery of any property to be made at a certain date or at recurring

periods. Provided that an application for enforcement or execution of a decree granting a

perpetual injunction shall not be subjected to any period of limitation. The executing

court must execute the decree according to it terms except when there is a statutory

limitation to execute it".

 121

Some of the Relevant Provisions in Limitation Act:-

Section 15: Exclusion of time in certain order cases:-(1) In computing the period of limitation

of any suit or application for the executing of a decree, the institution or execution of which has

been stayed by injunction or order, the time of the continuance of the injunction or order, the day

on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

(2) In computing the period of limitation for any suit of which notice has been given, or for which

the previous consent or sanction of the Government or any other authority is required, in

accordance with the requirements of any law for the time being in force, the period of such

notice or, as the case may be, the time required for obtaining such consent or sanction shall be

excluded.

Explanation:- In excluding the time required for obtaining the consent or sanction of the

Government or any other authority, the date on which the application was made for obtaining

the consent or sanction and the date of receipt of the order of the Government or other authority

shall both be counted.

 In computing the period of limitation for any suit or application for execution of a decree by

any receiver or interim receiver appointed in proceedings for the adjudication of a person as an

insolvent or by any liquidator or provisional liquidator appointed in proceedings for the winding

up of a company, the period beginning with the date of institution of such proceeding and ending

with the expiry of three months from the date of appointment of such receiver or liquidator, as

the case may be, shall be excluded.

 In computing the period of limitation for a suit for possession by a purchaser at a sale in
execution of a decree, the time during which a proceeding to set aside the sale has been
prosecuted shall be excluded.

 In computing the period of limitation for any suit the time during which the defendant has
been absent from India and from the territories outside India under the administration of the
Central Government, shall be excluded.

Section 17: Effect of Fraud or Mistake:- (1) Where, in the case of any suit or application for

which a period of limitation is prescribed by this Act:-

(a) the suit or application is based upon the fraud of the defendant or respondent or his

agent; or

 the knowledge of the right or title on which a suit or application is founded is

 122

concealed by the fraud of any such person as aforesaid; or

 the suit or application is for relief from the consequences of a mistake;

or

 where any document necessary to establish the right of the plaintiff or applicant has

been fraudulently concealed from him;

The period of limitation shall not begin to run until the plaintiff or applicant has

discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in

the case of a concealed document, have discovered it; or in the case of a concealed document,

until the plaintiff or the applicant first had the means of producing the concealed document or

compelling its production:

Provided that nothing in this section shall enable any suit to be instituted or application to

be made to recover or enforce any charge against, or set aside any transaction affecting, any

property which,-

 in the case of fraud, has been purchased for valuable consideration, by a person

who was not a party to the fraud and did not at the time of the purchase know, or have reason to

believe, that any fraud had been committed; or

 in the case of mistake, has been purchased for valuable consideration

subsequently to the transaction in which the mistake was made, by a person who did not know,

or have reason to believe, that the mistake had been made; or

 in the case of a concealed document, has been purchased for valuable

consideration by a person who was not a party to the concealment and, did not at the time of

purchase know, or have reason to believe, that the document had been concealed.

 Where a judgment-debtor has by fraud or force, prevented the execution of a decree or order

within the period of limitation, the court may on the application of the judgment-creditor made

after the expiry of the said period extend the period for execution of the decree or order:

Provided that such application is made within one year from the date of

the discovery of the fraud or the cessation of force as the case may be.

Section 18: Effect of acknowledgment in writing:- (1) Where, before the expiration of the

prescribed period for a suit or application in respect of any property or right, an acknowledgment

of liability in respect of such property or right has been made in writing signed by the party

against whom such property or right is claimed, or by any person through whom he derives his
 123

title or liability, a fresh period of limitation shall be computed from the time when the

acknowledgment was so signed.

(2) Where the writing containing the acknowledgment is undated, oral evidence may be

given of the time when it was signed; but subject to the provisions of the Indian Evidence

Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.

Explanation: - For the purpose of this section:-

 an acknowledgment may be sufficient though it omits to specify the exact

nature of the property or right, or avers that the time for payment, delivery,

performance or enjoyment has not yet come or is accompanied by a refusal to pay,

deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is

addressed to a person other than a person entitled to the property or right;

 the word "signed" means signed either personally or by an agent duly

authorized in his behalf; and

 an application for the execution of a decree or order shall not be deemed

to be an application in respect of any property or right.

LIMITATION FOR SEVERAL APPLICATIONS DURING EXECUTION

Art. No Description of Application Description of Time for which the

Application period begins to run

1 2 3 4

124 For a review of judgment by a Thirty days The date of decree or

Court other than the Supreme
Court. order

125 To record an adjustment or Thirty days When the payment or

satisfaction of a decree adjustment made.

126 Order 21, Rule CPC for payment Thirty days The date of decree
of amount of decree by
installments.

127 Under order 21 Rule 89, 90 and Sixty days The date of the sale
Sec. 47 C.P.C., to set aside a
sale in execution of a decree,
including any such application by
J.Dr.

128 Order 21 Rule 94 CPC Thirty days The date of

dispossession.
 124

129 Under order 21, Rule 97 CPC. For Thirty days The date of resistance
possession after removing or obstruction
resistance obstruction of delivery
possession of immovable property
decreed or sold in execution of a
decree.

134 Order 21 Rule 95 CPC One year When the sale become
absolute

135 Order 21 Rule 32 R/W 35 CPC Three years The date of decree
when the date is fixed
for such performance

136 For the execution of any decree Twelve years When the decree or
(other than granting mandatory oder becomes
injunction) order of any civil court. enforceable or where
the decree or any
subsequent order directs
any payment of money
or the delivery of any
property to be made at a
certain date or at
recurring between
period when default
making the payment or
delivery in respect which
execution sought takes
place. Provided that
application for
enforcement execution
of a decree granting
perpetual injunction shall
not be subject to any
period of limitation.

137 Any other application for which no 3 years When the right to apply
period of limitation is provided accrues
elsewhere in this division

Order 21 ¾ sale proceeds and SC charges Within 15 days From the date of sale
Rule 85 are amount requires for stamp
C.P.C. should be deposited

Rule 197 Sale proclamation batta along Shall be paid within From the date of order
C.R.P. with SP copies and Tom Tom 2 days
charges

Rule 187 Sale warrant batta shall be paid A week before date Fixed for sale
fixed for sale.
C.R.P.,

Order 21 Sale of immovable properties After expiry of 15 Where it has 7 days in

conducted days from the date respect of movables
Rule 68 on which the copy of
proclamation is
C.P.C.,
affixed on the notice
board.
 125

Relevant Case Law :-

 In Giridarlal Vs. Tagore Das AIR 1964 Orissa 170, it has been held that initial

owners of upon the decree holders to show that the execution is within time. Where

the application for execution is prima facie not beard by limitation it is for the judgment

debtor to show that the execution is time barred.

 In Manwa Vs. Moulana AIR 1981 All. 143 a decree for mandatory injunction and

for possession was passed, in which two months time was given to the defendants to

remove the debris failing which the plaintiff was entitled to get the debris removed by

the process of court and was entitled to get possession of the land. The decree was

passed on 25.4.1961, it has been held that the decree between enforceable on

25.6.1961. As the execution case was filed on 12.5.1973 it is also held that decree

was possession of executable as it was filed within 12 years of the date when the

decree was possession became and forcible., but decree for mandatory injunction

could not be executed because it has been filed within 3 years of 26.9.1961 under

article 135 of Limitation Act.

 In Mohan Lal Vs.Hari Prasad Yada, 1994 (4) SCC 177: (2) UJ 458, after the period of

limitation prescribed under Art.127 of the Act, the executing court derives no jurisdiction to

entertain an application for condonation of delay.

In Chhagan Lal Vs. Indian Iron & steel Co, Ltd., AIR 1979 Cal 160 (1979) 83 CWN 195 (DB),
when a decree is executable under the law and when the D.Hr allows such decree to become
barred by law, he cannot be allowed to get the fruits of the decree by a separate action.

 In Hameed Joharan (d) Vs. Abdual Salam (d) AIR 2001 SC 3404, limitation for

execution of a partition decree starts from the date of passing of final decree, irrespective of its

being engrossed on stamp papers.

Time required for o2btaining a certified copy of decree cannot be excluded for computing

limitation.

The second part of third column of article 136 provides that where the decree or

subsequent order directs any payment of money or for the delivery of any property to be made

at a certain date or at requiring periods then the limitation commenced from the date when the

default in making the payment or delivery in respect of which the execution is sought for, takes

place. Therefore, this part covers in terms all cases where either the decree originally or by any

subsequent order directs the payment of decretal amount or delivery of any property at a future

date or by installments. The words ―certain date’

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used in the 3rd column of article 136 refereed to a date which at the date of decree or order is

certain. Therefore, a date which can become certain only at the future time will not be a certain

date, within the meaning of article 136. The words ―certain date‖ or of the vide amplitude than

the word ―specified and which consequently mean an ascertained or ascertainable date‖.

CONCLUSION:

So, in view of various provisions under Limitation Act, Limitation must be strictly followed

while filing different applications covered under sec.36 to 74 and order 21 of the Civil Procedure

Code, which governs execution of decree and orders.

Paper presentation by/-

Ch. Madhu babu,

Additional Judicial Magistrate of I Class,

Parvathipuram.