JURISDICTION OF THE EXECUTING COURT

TOPICS COVERD

1. Introduction

2. Meaning of Execution

3. Meaning of Jurisdiction in the Executing Court

4. Difference between Jurisdiction in Suits and

Jurisdiction in Execution Petitions

5. Interpretation of Jurisdiction in Execution Petitions

6. Recent Judgments

7. Conclusion
 JURISDICTION OF THE EXECUTING COURT

Paper Presentation By

P. SIVARAMA PRASAD
SENIOR CIVIL JUDGE
CHODAVARAM

Introduction

Execution of Decree is the solemn function of the Courts.

Civil Courts are established to adjudicate the rights and
liabilities of the parties and give its verdict in accordance with
law on the issue before it. This verdict given by the Civil Court is
called as Judgement. The word Judgement is defined in Section
2 (9) of Code of Civil Procedure as statement given by Judge.
In the other words Judgement generally means opinion of the
Judge or evaluation of evidence to give a decision. Every
Judgement of the Civil Court has binding nature.

In every Judgement there will be an operating portion

called as “Decree”. This word Decree is defined in Section 2(9)
Code of Civil Procedure simply as former expression of an
adjudication about conclusive determination of rights of the
parties. When any right is recongnized in the Judgement, the
party in whose favour the Judgement is given will be entitled to
get the said right by operation of Law called as Execution of
Decree.

As and when a Judgement is given by a Civil Court, that

Judgement is to be executed then only the purpose of the party
coming to the court can said to have been served. But in
several cases the Judgements are given but the Execution
became a difficult task to the parties. The following quote will
explain the present situation.

Now a days opinion of a litigant is like this

My Journey for Justice
is stating at forever
and ending at never
Way back in the year 1872 Privy Council held in

1) COURT OF WARDS VS. MAHARAJAH COOMAR

RAMAPUTS SINGHAD,1872
that

“THE DIFFICULTIES OF A LITIGANT IN INDIA BEGIN WHEN

HE HAS OBTAINED A DECREE BECAUSE THE SAME IS
HARDLY EXECUTED”

This observation of the Privy Council is reiterated in recent

Judgement of Hon’ble Supreme Court in

2) SATYAWATI VS RAJINDER SINGH AND ANR ON 29 TH

APRIL, 2013
 With this background the other facets of Execution are to
be discussed. In fact Law relating to execution is more wider
when compare to the other provisions. In certain areas, the
Executing Court is given power to Execute the Decrees, Orders
even than in normal course. For example when any Execution
Petition is pending before the court and when claim petition
Under Order 21 Rule 101 CPC is filed, not withstanding the
territorial, Pecuniary and other limitations, the said issue can be
decided. The said Order 21 Rule 101 CPC and the word
deemed Jurisdiction is used in this Rule which can’t be found in
any other provision.
 Meaning of Execution

The word Execution is not defined in Code of Civil

Procedure. But by looking into various sources the word
“Execute” has been inter alia defined in the Shorter Oxford
English Dictionary, to mean: to follow out, to carry into effect, to
carry out, to perform, to go through the formalities necessary to
its validity. Institution of Plaint by a litigant when considered
as starting point of the suit, end of the Suit proceedings
completely is Execution. A litigation will never end by the
disposal of the suit but it will terminate by disposal of Execution
Petition. That's why so much of time will be generally consumed
not for deciding the suit but for deciding the Execution Petitions.

Various provisions in Code of Civil Procedure deals with

suit proceedings and also Execution Proceedings. There are
Sections 1 to Sections 158 and there are Orders 1 to Orders 51
in Code of Civil Procedure and among them the biggest Order
is Order 21 which has Rules 1 to 106. Besides that there are
Civil Rules of Practice and circular Orders to be followed while
deciding various Suits and Execution Petitions. This Order 21
is exclusively dealing with execution proceedings. The
procedure contemplated under Order 21 to deal with various
Execution Petitions is cumbersome and involving several
technical aspects. However this chapter has taken care of
different situations.
The Hon’ble Supreme Court in
3) GHANSHYAM DAS. VS ANANT KUMAR SINHA
dealing with provision of the Code of Civil Procedure relating to
execution of decree and Orders, stated,
“ so far as the question of executability of decree is concerned,
the Civil Procedure Code contains elaborate and exhaustive
provisions for dealing with it in all aspects. The numerous rules
of order 21 of the code take care of different situations proving
effective remedies not only to judgment-debtors and decree-
holders but also to claimant objectors, as the case may be. In
an exceptional case, where provisions are rendered incapable
of giving relief to an aggrieved party in adequate measures and
appropriate time, the answer is a regular suit in the Civil Court.

Finally it can be concluded that the word Execution means

giving effect to the Decree which is produced before an
Executing Court
 Meaning of Jurisdiction in the
Executing Court

The word Jurisdiction is not defined in CPC. The word

Jurisdiction is derived from the Latin word Juris which means
“authority to decide” a case and dicere which means “to
speak” . So meaning of Jurisdiction is official power to give legal
decisions and Judgements. A Judgment or an Order passed by
the Court without Jurisdiction is Nullity in the eyes of Law. So
the word Jurisdiction is to be understood with reference to
various aspects. While dealing with the Jurisdictional issues,
several topics comes into play. The word Jurisdiction is not a
single expression or term but it is ongoing process which a
Court has to look into. Jurisdiction in general can be classified
into three important sub heads. Those are
1. Territorial Jurisdiction
2. Pecuniary Jurisdiction
3. Subject matter Jurisdiction
The above classification of Jurisdiction has its own
importance.
While dealing with suits or execution petitions, the Court
is bound to consider all the three. In this contest the Law is well
settled.
Dealing with this question, the Supreme Court observed in
4) KARAN SINGH VS CHAMAN PASWAN that a Decree
passed by a court without jurisdiction is 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.
Further in
5) GURNAM SINGH (D) THR. LRS & ORS VS
GURBACHAN KAUR (D) BY LRS ON 27 APRIL, 2017,
the Hon’ble Supreme Court followed the same principle.
Hence, Jurisdiction of the Court has to be decided keeping
in view of the various Provisions in Code of Civil Procedure and
various Judicial Pronouncements.
 Difference between Jurisdiction
in Suits and
Jurisdiction in Execution Petitions

The difference between Jurisdiction in Suits and

Jurisdiction in Execution Petitions is to be discussed because
the meaning of the word Jurisdiction is nothing but authority of
the Court to give the Judgment or order.

Even though the word Jurisdiction applies to Suits and

Execution proceedings, the Law governing same is different.
While discussing Jurisdiction of the suits, the paramount
considerations are territorial Jurisdiction, pecuniary Jurisdiction
and subject matter Jurisdiction but the considerations before
Executing court are not the same.

An Executing Court cannot go beyond the Decree. It has no

Jurisdiction to criticise the Decree. This principle has been
followed from Judgement of Hon’ble Supreme Court in

6) IN TOPANMAL VS M/S KUNDOMAL GANGARAM

REPORTED IN AIR 1960, SC 388.
 Further in

7) O. SREENIVASULU VS SMT. P. SANTHI reported in AIR

2007 AP 115, 2007 (2) ALD 175, 2007 (2) ALT 673 again
stated same principle.

For better understanding of scope of the respective courts

jurisdiction is explained in the below tabular format.

Jurisdiction in suits Jurisdiction in Execution

Petitions

1. Jurisdiction in suits is 1. Jurisdiction in this Execution

governed by Sections 15 to
21-A CPC.
2. Issue of jurisdiction in suits
mainly relied to territory,
pecuniary and subject matter
Jurisdiction?
3. Issue of Jurisdiction in the
suits is to decide the power of
court and mainly to limit the
litigation.
4. Some times the Court which
has no Jurisdiction cannot
passed the decree.
Petitions is mainly governed by
Sections 38 and 39 of C.P.C.
2. These three aspects of
territory, pecuniary and subject
matter will be taken care at the
time of suit itself so there is no
such division in all cases.
3. Issue of Jurisdiction in
Execution Petitions is not to limit
but to increase scope of
Jurisdiction?
4. Some times the orders which
cannot be decided by executing
court may also delt. Example
Rule 101.
 In view of the above noticable the distinction between the
Jurisdiction in suits and Jurisdiction in Execution Petitions, it
can said that the Law has taken care to see that all the decrees
are executed and wide powers given to Executing Court.
 Interpretation of Jurisdiction
in Execution Petitions.
A question may arise as to whether the Law of execution is
applicable to Decrees alone or it applies equally to the Orders.
The starting Section under the head Execution in CPC I.e
Section 36 of CPC start with the words “ Application to Orders”.
This Provision unables the Court to execute not only the
Decrees but also some Orders as well. Section 36 CPC reads
as follows.
1. Application to Orders :- The provisions of this Code
relating to the execution of Decree (including provisions relating
to payment under a decree) shall. So far as they are applicable
be deemed to apply to the execution of Orders (including
payment under an Order).
For example in the Court imposes costs of Rs.300/- to the
Defendant for filing written statement and the Defendant fails to
pay such costs but files his written statement, the Order passed
by the Court directing the Defendant to pay the costs is an
executable order within the meaning of Section 36 of CPC. The
Plaintiff can execute said order as if it were be a Decree and
realized costs of Rs.300/- in the execution proceedings. The
question of Jurisdiction may also arise with regard to execration
of orders and the principles governing execution of Decrees
shall apply to the execution of Orders.
 2. Even though it is a Rule that the Court which passed
the Decree has to execute the same, there are certain
exceptions to this general Rule. Before going on to the other
important issues in this regard, it is just an proper to Court the
main Rule for better understanding of the topic proper. The
Court which passed the Decree has to execute the same is the
Rule recognized in Section 38 of the CPC.
3. Section 38 of the CPC reads as follows:-
Section 38 of CPC:- Court by which decree may be executed:-
A Decree may be executed either by the Court which passed it
or by Court to which it is sent for execution.
4. So, the plain language used in Section 38 has no
other meaning except the meaning that the Court which passed
the Decree has to execute the same. However there is a
proviso in the said Section itself that the Decree may be
executed by the Court to which it is sent for execution.
5. The Court which passed the Decree automatically
assumes the power of execution of the Decree in view of the
above Section 38 of CPC. Sometimes several Courts are
situated in one complex, the Court which passed the Decree
may not be having power to execute the Decree but this type of
internal arrangement in Execution is for the sake of
convenience but not for any other purpose.
 6. In view of the above discussion, it is needless to say
that the Court which passed the Decree has to execute the
Decree. Now the exceptions to this Rule are to be examined. As
already stated where there are several Courts in one Court
Complex, power to pass the Decrees can be vested with one
Court whereas, power to execute the Decrees can be vested
with the other Courts. For example in some Courts like
Bhimavaram, Principal Junior Civil Judge's Court is the
institution Court and it has got power to execute the decide the
cases and passed Decrees but it has no power to entertain the
execution petitions. Execution petitions relating to Decrees
passed by Bhimavaram, Principal Junior Civil Judge's Court
are to be executed by Bhimavaram, I Additional Junior Civil
Judge's Court. Even though this arrangement is made for the
purpose of convenience, when both Courts are equal in
competency, there is no distinction between these two Courts.
In the other words, the Bhimavaram, Principal Junior Civil
Judge's Court is nothing but executing Court and Bhimavaram,
I Additional Junior Civil Judge's Court is the Corut passing the
Decree for the purpose of Section 38 of CPC and vice versa.
This is the first instance where a Decree may be executed by
the Court which has not passed the Decree.
 7. Now coming to another instance of execution by
another Court, under Section 17 of the CPC when the suit
Schedule property falls within Jurisdiction of different Courts,
the suit may be instituted within the local limits of whose
Jurisdiction any portion of the property is situated but the Court
before which the suit is filed should have competency to decide
the suit including the other property but it shall not exceed the
pecuniary Jurisdiction of the Court. This Section is to be
understood with the following example.

“ A “ filed a suit for recovery of immovable properties before

Principal District Court, Visakhapatnam. The suit schedule
consisting of two items, one item of property situated within the
local limits of Visakhapatnam and another item of property is
situated within the local limits of Senior Civil Judge's Court,
Chodavaram. The value of the property situated in
Visakhapatnam is around 13 Lakhs and the value of the
property situated in Chodavaram is around 7 Lakhs. The
Principal District Court, Visakhapatnam can entertain the suit
and proceed to dispose of in accordance with Law but the
Senior Civil Judge, Chodavaram cannot entertain the suit and
to proceed to dispose off the suit because that Court has no
competency to decide the suit relating to property situated in
Visakhapatnam.
 8. When the suit of above referred nature was Decreed,
the next question comes what is the proper Court to execute
the Decree. This controversy has been resolved by the Hon'ble
High Court of Mysore way back in the year 1968 by the
Judgment reported in AIR 1968 Mysore Page No.82. In this
Hon'ble High Court of Mysore held that the Court which passed
the Decree alone has got authority to entertain the execution
Petition even the Decree falls Under Section 17 of CPC.
 Recent Judgments

(1)

1) Court Honourable High Court of

Andhra Pradesh
2) Civil Revision Petition No. 1340 of 2015
3) Date of Judgment 01-10-2015
4) Parties Potlabathuni Srikanth and
others
....Petitioners
Shriram City Union Finance
Limited and others
.... Respondents
5) Honourable Judge: Honourable Sri Justice
R.Subhash Reddy and
Honourable Sri Justice
A. Shankar Narayana

Point: - In the above decision the Honourable High Court while

dealing with various petitions filed challanging the Jurisdiction of
executing court especially Senior Civil Judg's to entertain the
Execution Petitions arising out of arbitration awards, held that
Senior Civil Judge's have no inherent Jurisdiction to dealwith
Exectuion Petitions filed under Section 36 of the Arbitration Act.

(2)
1) Court Honourable High Court of
Andhra Pradesh
2) Civil Revision Petition No. 5236 of 2016
3) Date of Judgment 14-03-2017
4) Parties Punyamuthula Venkata Viswa
Sundara Rao and another
....Petitioners

M/s Margadarsi Chit Fund

Private Limited and others
.... Respondents
5) Honourable Judge: Honourable Sri Justice
C.V. Nagarjuna Reddy and
Honourable Smt Justice
T. Rajani

Point: - In the above decision the Honourable High Court held

that in any award passed by Chit Registrar under Chit Funds
Act, 1982, the decree holder has to file an application before
the Registrar of Execution, then the Registrar has to forward the
application to proper authority with his certificate to the court or
even to the Revenue Authorities.

(3)
1) Court Honourable High Court of
 Andhra Pradesh
2) Civil Revision Petition No. 4402 of 2016
3) Date of Judgment 20-01-2017
4) Parties Dhruv Medical Centre, A
Partnership Firm, Having its
place of Business at Vinayak
Towers, Secundrabad.
....Petitioner

Vijay Shankar Patel and

another
.... Respondent
5) Honourable Judge: Honourable Sri Justice
B. Siva Sankara Rao

Point:- In this case the Honourable High Court while refering to

number of earlier judgments, held that the word District Court in
Arbitration and Reconciliation Act, 1996 means the District
Judge and also all other Additional District Judges and
Execution Petitions filed based on award can be entertained by
Additional District Judges as well.
 (4)
1) Court Honourable High Court of
Andhra Pradesh
2) Civil Revision Petition No. 447 of 2017
3) Date of Judgment 20-03-2017
4) Parties Shaik Mahammad Rafiuddin
....Petitioner/J.Dr

Gummala Narayana Reddy

.... Respondent/D.Hr
5) Honourable Judge: Honourable Sri Justice
U. Durga Prasad Rao

Point:- In this case the Honourable High Court held that once
Execution petition is filed and the parties settled the matter
before Lok Adalat and payment is made, such payment is to be
recorded in the Execution Petition as full satisfaction or part
satisfaction, then only the payment can be legally deduct from
the subsequent Execution Petition claim. In case the payment is
not recorded in the Execution Petition, the payment made
before Lok Adalat cannot be treated as payment to which the
J.Dr is entitle for deduction.

(5)
1) Court Honourable High Court of
Andhra Pradesh
2) Civil Revision Petition No. 2030 of 2016
3) Date of Judgment 05-01-2017
4) Parties Dr. Talluri Satish Chandra
....Petitioner

Thoram Venkateswara Rao

and two others
.... Respondents
5) Honourable Judge: Honourable Sri Justice
M. Seetharama Murthi

Point: - In this case the Honourable High Court held that in case
of an award passed in the Lok Adalat irrespective of a civil suit
or criminal case, the same falls to the definition of decree and it
can be executed by the Executing Court.
 Conclusion

Execution of decrees should receive the same attention

from the Courts as original civil work and should be
methodically and regularly dealth with, as expeditiously as
possible. Where parties have to be heard or evidence recorded
in the court of execution proceedings, notice should be given,
processes issued and dates fixed as in the case of original
suits. As a rule one day during the week should be reserved for
execution works so as to ensure proper attention being paid to
it; some times two days are necessary. - All orders passed in
the execution proceedings should be carefully and distinctly put
on record in chronological order.

IN BABU LAL VS.M/S HAZARI LAL KISHORI LAL &

ORS. (1982) 1 SCC 525) in para 29 the Honourable Supreme
Court held that ''Procedure is meant to advance the cause of
justice and not to retard it. The difficulty of the decree holder
starts in getting possession in pursuance of the decree obtained
by him. The judgment debtor tries to thwart the execution by all
possible objections....'''. ..............Thank you. P.Sivaramprasad
 ATTACHMENTS

Presented

By

Smt. Shammi Parvin Sulthana Begum,

B.Sc., B.L., L.L.M.,
II Addl. Chief Metropolitan Magistrate,
Visakhapatnam.
 ATTACHMENTS
INTRODUCTION

The term civil litigation refers to a legal dispute between two or

more parties that seek recovery of money, recovery of property,

damages, injunctions, specific performance, partition etc., rather than

criminal sanctions. The civil litigation begins with the presentation of

plaint. There are several stages of civil litigation. Some of them are:

1. Registration

2. Adjudication

3. Judgment.

4. Execution.

Execution is the last phase of civil litigation. Decree is an operative

part of the Judgment. Execution is the medium enables the decree-holder

to get the fruits of the Decree. Execution is a ladder through which the

DHr can claim from the stage of Decree to the fruits. Decree is not an end

to the civil litigation. Effective and complete execution of Decree is a real

end of Civil litigation.

Decree means “the formal expression of an adjudication

determining the rights of the parties either preliminary or final (Section

2(2) CPC)”. Order means “formal expression of any decision of a civil

court which is not a decree (Section 2 (14) CPC)”. Implementation of

Decree or Order is known as execution. The expression “execution”

means enforcement or implementation or giving an effect to the Decree

or order passed by the court. The term “execution” has not been defined

in the code. Simply “execution” means the process for enforcing or giving

effect to the Decree or Order of the court so as to enable the decree-

holder to realize the fruits of the decree.

Illustration:

A files a suit against B for Rs 10,000 and obtains a decree against him.

Here A is the decree-holder. B is the judgement-debtor, and the amount

of Rs 10,000 is the judgment- debt or the decretal amount. Since the

decree is passed against B, he is bound to pay Rs 10,000 to A. If B fails

or refuses to pay the decretal amount to A, he will recover the said

amount from B by executing the decree through judicial process. The

principles governing execution of decree and orders and the solemn act

of execution from grass roots to the top, are dealt with in Sections 36 to

74and order 21 of the code.

Common provision for all kinds of E.Ps:

Rule 22 is the condition precedent. When the EP is filed within the 2

years of decree no notice shall be necessary to JDr and directly the court

can issue warrant. To accommodate the Jdr's we are simultaneously

issuing notice to Jdr. When the EP is filed beyond the 2 years of decree

the notice shall be issued to Jdr.

A Decree or Order can be executed by various modes which

includes attachments, delivery of property, arrest and detention of the

judgement-debtor, sale, by appointment of receiver, partition, cross-

decrees and cross-claims, payment of money etc. Attachment is one of

the convenient modes of execution. The DHr is entitled to claim the fruits

of Decree or Order by seeking attachment of cash or kind of Jdr.

Common provision for all kinds of attachments:-

Section 60 C.P.C. specifying all types of properties liable and not liable for

attachment.

Section 60(1) of CPC :-- 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:

Provided that the following properties shall not be liable to such

attachment or sale, namely

(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;

(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 pensions;

(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;)

(i-a) 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, for the time being applies in

so far as they are declared by the said Act not to be liable to attachment;

(k-a) all deposits and other sums in or derived from any fund to

which the Public Provident Fund Act, 1968, for the time being applies, in

so far as they are declared by the said Act as not to be liable to

attachment;
 (k-b) all moneys payable under a policy of insurance on the life of

the judgment-debtor;

(k-c) 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;

(l) 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 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.

Rules 41 to 54 of Order XXI C.P.C. deals with process of

attachments. In our day to day Judicial work mostly we are dealing with 3

kinds of attachments. They are

1. Attachment of salary. (Rule 48)

2. Attachable of Movable Properties.(Rule 43)

3. Attachable of Immovable Properties. (Rule 54)

I. ATTACHMENT OF SALARY

Order XXI Rule 48 provides for attachment of salary of a

Government Servant including servants of Railways, Local Authorities,

Corporations of Government and Government Companies. Affidavit should

be filed along with the E.P., giving salary particulars of J.Dr. Order

XXI 48-A provides for the attachment of salaries of private employees.

In clauses (i) and (ia), ‘salary’ means the total monthly

emoluments, excluding any allowance declared exempt from attachment

under the provisions of clause (1), derived by a person from his

employment whether on duty or on leave.

As per Section 60(1)(i)CPC entire salary of employee is not liable

for attachment. The first Rs. 1000/- of the salary is exempted from

attachment completely and 2/ 3 of the balance is also exempted from

attachment. Only 1/3 of the remainder is liable for attachment.

Attachment in pursuance of a single decree can be made only for a period

of 24 months.

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 24 months, such portion shall be

exempted from attachment until the expiry of a further period of 12

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 24 months, be finally exempt from attachment in execution of

that decree.

Relevant case Laws:-

1
(1) Nageswara Rao Vs. T.V.Lashmi Narayana

(2) Raghavarapu Nageswara Rao Vs. Tenneti Venkata Lashmi

2
Narayana

1
AWS (APH) 1997
2
1997 (6) ALT 762
 3
(3) Bapu Gadgil Vs. Raja Ram
4
(4) Shaik Nooriahan Vs. M. Rajeswari

The interpretation of Section 60 (1) (i) of CPC given by courts

various Judgments around what is salary, what constitutes a part of

salary, how much exemption a J.dr will get and so on. However, there

have been hardly any precedents which provide for the calculation of

attachment of salary with regard to attachment since the inception of the

code oc CPC, 1908.

(i)Maintenance of wife:

There is an exception to the general rule in case of maintenance.

As far as maintenance is concerned the attachable portion is 2/3 of the

salary and not 1/3 as in the case of other money decrees. The exemption

of first Rs.1000/- does not apply while executing a maintenance decree.

The restrictions of attachment to 24 months or exemption from

attachment for a period of 12 months thereafter, also do not apply to

execution of a decree for maintenance. Ahmed Pasha Vs. Wajid

5
Unnisa and others

Under section 60(1) (n) of the Code of Civil Procedure, a right to

future maintenance is not attachable. This is analogous to section 6(dd)

of the Transfer of Property Act which says that a right to future

maintenance cannot be transferred. Once the maintenance amount has

accrued, and especially when the same is deposited into Court, the

money so accrued or deposited does not remain a mere right to future

maintenance.

In Bhagwath Babu Rao Gaikwad Vs. Babu Rao Bhaiyya

6
Gaikwad It has been held that when a money lender or a Bank has got

the right to attach the salary in execution of the money decree or

3
2003 DMC 770
4
AIR 2010 AP 207
5
1983 Cr.L.J.479
6
1994 Cr.L.J.2393.
maintenance decree, it is preposterous to say that a wife cannot seek for

attachment of her husband's salary for recovering the arrears of

maintenance granted by the Magistrate under S. 125(3). A wife who is

entitled to maintenance under S. 125, Cr.P.C. and who is also entitled to

recover the arrears under S. 125(3), cannot be placed worst than a

money lender. What is available under S. 60, C.P.C. for maintenance the

decree-holder can also be made available under S. 125(3), Cr.P.C. for the

recovery of arrears of maintenance”. Future salary of Husband can't be

attached by wife.

Both under section 60(l)(n) of the Code of Civil Procedure, and

section 6(dd) of the Transfer of Property Act, what is not attachable or

transferable, as the case may be, is not ‘future maintenance’, but ‘right to

7.
future maintenance’. Relevant case Law Mani Vs Jaya Kumari In which

it is held that nothing is provided under the Code empowering the

learned Magistrate to attach the future salary which is not a tangible

corporeal property that too before its approves to the petition and the

attachment of salary for 30 months is exceeded the limit.

The court can attach the salary of the government employee

working within the jurisdiction of the court or beyond jurisdiction of the

court (Rule 48(1) of Order XXI). The salary of the private employee will

be attached only when he is working within the jurisdiction of the court

(Rule 48(A) of Order XXI). Aditya Electronics Vs. AS Impex Limited

and others 8. The court cannot attach the salary of the private employee

working beyond jurisdiction of the court.

(ii)PENSION:

Then word pension has not defined denied any where however it

7
1998 Crl. Law Journal 3708
8
AIR 2004 AP 321
has been held that it implies periodical payments of money to a pensioner

as held in Wasif Ali Mirza Vs Karnain Industrial Bank 9 . Two

essentials are necessary to constitute pension i.e., 1) Periodical payment

2) Grant not in respect of any right privilege, perquisite or office. In

Municipal Counsel, Salem Vs. GururaJAH Rao, AIR 1934 Madras

249, it has been held that a pension is a periodical payment of money for

past services. A pension is not attachable as per Sec.11 of Pensions Act

also. Related case law Shaukat Hussain Vs. State of UP and

10.
another

(iii) Provident Fund:-

The provident fund of the judgment-debtor (a railway employee) is

not liable to attachment having regard to the provisions of section 60,

Civil Procedure Code, and section 3 of the Provident Funds Act. Even if

the debtor agrees to the attachment of his salary waiving the rights

conferred on him by section 60, C.P.C., still the attachment is illegal and

should be raised, as such an agreement is opposed to public policy, void

and unenforceable.

(iv)Gratuity & Retirement benefits:-

Stipends and Gratuities allowed to the pensioners of the

government or payable out of service family pension fund and political

pension are exempted u/ Sec. 60 (1)(g) of the code from an

attachment. Amount due from a postal department to the heirs of a

deceased judgment-debtor is is also exempted from attachment under

section 60(l)(g), C.P.C. Relevant case Law “Satyavathi Vs. Bhargavi

(died), Vijayan and another AIR 1991 Kerala 377” in which it is held

9
AIR 1934 Madras 249
10
AIR 1959 ALL 769
that an amount due as gratuity to deceased/Jdr and payable to his LR's is

not exempted from attachment, since it is only a debt in the hands of the

department and there is nothing wrong in attachment for realization of

amount due from Jdr.

Retirement benefits are exempted from attachment so long as they

are not received by the beneficiary. Relevant case Law “ Bandi Chinna

Reddy Chinaramalinghaiah Vs. Nalluru Srinivasulu and another

2006 (3) ALT 206”. Held that an amount lying to the credit of Jdr in the

Bank can be attached.

(v)Wages:

Section 60(1) clause (h) applies only to such labourers and

domestic servants whose wages do not exceed the amount mentioned in

clause (i), i.e., Rs. 400 per month. ‘Wages’ is used in the same sense as

‘salary’.

In the Explanation IV to proviso to section 60(1) wages includes

bonus and ‘labourer’ includes ‘skilled’, ‘unskilled’ or ‘semiskilled. Neither

in section 60(l)(c) nor in Explanation 4 it has been mentioned that skilled,

unskilled or semi-skilled labourer is limited to only agricultural labourer. A

‘labourer’ is a person who earns his daily bread by personal manual

labour, or in occupations which require little or no art, skill or previous

11
education. Relevant case Law is: State of Punjab Vs. Rafiq Masih .

II. Attachment of movable property:(Order XXI Rule 43).

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 same in his own custody, or in the custody of one of his

subordinates, and shall be responsible for the due custody thereof:

11
AIR 2015 SC 696
 Provided that when the property seized is subject to speedy and

natural decay(perishable in nature) or when the expense of keeping it in

custody is likely to exceed its value, the attaching officer may sell it at

once.

Where the movable property is not in possession of the judgment-

debtor, the attachment shall be made by a written order prohibiting the

person in possession of the same giving it over to the judgment-debtor.

Related case Laws:-

12.
(1)Santhi Bai Vs. State of Bombay AIR

13.
(2) Uttam chand Vs. Smt. Radha Bai

(i)Attachment of Agricultural produce:(Order XXI, 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

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

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

threshing-floor or fodder-stack on or in which it is deposited, and another

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

which the judgment-debtor ordinarily resides, or, with the leave of the

court, where 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.

(ii)PARTIAL EXEMPTION OF AGRICULTURAL PRODUCE(Sec.61):

The State Government may declare any portion of agricultural

produce or of any class of agricultural produce until the next harvest for

the due cultivation to support the J.Dr and his family, by way of general

or special order published in the Official Gazette. The said exemption is

12
1958 SC 532
13
1990 MP H.C.
applicable in case of all agriculturist or of any class of agriculturist.

(iii)PROCEDURE AS TO AGRICULTURAL PRODUCE UNDER

ATTACHMENT( RULE 45):-

(1) Where agricultural produce is attached, the court shall make

arrangements for the custody and every application for the attachment of

growing crop shall specify the time at which it is likely to be fit, to be cut

or gathered.

(2) The judgment-debtor has to tend, cut, gather and store the produce

and take necessary steps for maturing or preserving. If he failed to do

so, the decree-holder may with the permission of the court do or any of

them, either by himself or by any person appointed by him. The costs

shall be recoverable from the judgment-debtor.

(3) If the agricultural produce is attached as a growing crop, such

attachment shall not be deemed to be ceased merely because it has been

severed from the soil.

(4) Where an order for attachment of a growing crop has been made at a

considerable time before the crop is likely to be fit to be cut, or gathered,

the court may suspend execution of the order for such time in its

discretion and may make an order prohibiting the removal of the crop

pending the execution of the order of attachment.

(5) A growing crop which from its nature does not admit of being stored

shall not be attached under this rule, at any time less than 20 days before

the time at which it is likely to be fit to be cut or gathered.

(iv)ATTACHMENT OF DEBT,SHARE AND OTHER PROPERTY NOT IN

POSSESSION OF JDr (Rule 46):-

(1) In the case of---

(a) a debt not secured by a negotiable instrument;

(b) a share in the capital of a corporation;

(c) other movable property not in the possession of the judgment-debtor,

except property deposited in or in the custody of any Court;

the attachment shall be made by a written order prohibiting;

(i) in the case of debt, the creditor form recovering the debt and the

debtor from making payment thereof until the further order of the Court;

(ii) in the case if the share, the person in whose name the share may be

standing from transferring the same or receiving any dividend thereon'

(iii) in the case of the other movable property except as aforesaid, the

person in possession of the same from giving it over to the judgment-

debtor.

(2) A Copy of such order shall be affixed on some conspicuous part of the

Court-house, and another copy shall be sent in the case of the debt to the

debtor, in the case of share to the proper officer of the corporation and in

the case of the other movable property(except as aforesaid) to the person

in possession of the same.

(3) A debtor prohibited under clause (i) of sub-rule(1) may pay the

amount of his debt into Court and such payment shall discharge him as

effectually as payment to the party entitled to receive the same. Relevant

case M.Venkata Ramanaiah Vs. M/S Margadarsi Chit funds Ltd. and

others 2009 Law Summary 25.

(v)Procedure for seizure of property in dwelling house(Sec. 62):

(1) The person who authorized or directed for the seizure of movable

property shall not enter into any dwelling house after sun set or before

sun rise.

(2) The outer door of the dwelling house shall not be broken unless the

J.Dr prevents or refuses the access.

(3) After due access in the dwelling house, he may take open the door of

any room where the property is located.

(4) The dwelling house in occupancy of women does not appear in the

public shall be served notice.

III. ATTACHMENT OF IMMOVABLE PROPERTY(Rule 54):

Attachment of immovable property is a legal process of taking,

apprehending or seizing the property by virtue of any forms of judicial

order to the satisfaction of the judgment or during the pendency of

litigation. Immovable properties are defined in Sec.3(26) of General

Clause Act, 1897 and shall include land, things attached to earth or

permanently fastened to anything to earth.

The code 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. Rule 54 of Order 21 deals with the

subject of attachment of immovable property. Section 60 of the code

enumerates immovable properties which are liable to be attached and

sold in execution of a decree.

Definition of Immovable Property:

i. According to Section 3 of that Act, "Immovable Property" does not

include standing timber, growing crops or grass. Thus, the term is defined

in the Act by excluding certain things. "Buildings" constitute immovable

property and machinery, if embedded in the building for the beneficial use

thereof, must be deemed to be a part of the building and the land on

which the building is situated; ;

ii. As per Section 3(26) of the General Clauses Act 1897, "immovable

property" "shall include land, benefits to arise out of land and things

attached to the earth, or permanently fastened to anything attached to

the earth". This definition of immovable property is also not exhaustive;

iii. Section 2(6) of The Registration Act,1908 defines "Immovable

Property" as under: "Immovable Property includes land, building,

hereditary allowances, rights to ways, lights, ferries, fisheries or any

other benefit to arise out of land, and things attached to the earth or

permanently fastened to anything which is attached to the earth but not

standing timber, growing crops nor grass". The above definition, implies

that building is included in the definition of immovable property.

iv. The following have been held as immovable property: A right to collect

rent, life interest in the income of the immovable property, right of way, a

ferry, fishery, a lease of land.

Relevant Cases:-

i. Shantabai v. State of Bombay,14

15
ii.Chhotabhai Jethabhai Patel &Co.v.State of Madhay Pradesh,

16
iii. State of Orrissa v. Titaghur Paper Mills Co. Ltd.,

iv. Anand Behera v. State of Orrissa,17

(A) Rule 54: (1) Where the property is immovable, the attachment shall

be made by an order prohibiting the judgment-debtor from transferring or

charging the property in any way, and all persons from taking any benefit

from such transfer or charge.

(2) The order shall be proclaimed at some place or adjacent to such

property by beat of drum or other customary mode. A copy of the order

shall be affixed on a conspicuous part of the property and on a

conspicuous part of the Court house. Where the property is land paying

revenue to the Government, a copy of the order shall be similarly affixed

14
AIR 1958 SC 532
15
AIR 1952 SC 108
16
AIR 1938 ALL 115
17
(1955) 2 SCR 919
in the office of the Revenue Divisional Officer of the area where the land

is situated. Where the property is situated within the Contonment limits

the order shall be similarly affixed in the office of the Local Contonment

Board and the Military Estates Officer concerned and where the property

is situated within the limits of a Municipality, in the office of Municipality

within the limits of which the property is situated”.

(3) The order of attachment shall be deemed to have even made as

against transfers without consideration from the judgment-debtor from

the date of attachment, and as against all other persons from the date on

which they respectively had knowledge of the order of attachment, or the

date on which the order was duly proclaimed under sub-rule(2),

whichever is earlier.

(B) Section 63:-(1) Where property not in the custody of any court, is

under attachment in execution of decrees of more courts than one, the

highest court shall receive or realize such property.(2) Where there is no

difference in grade, the court under whose decree the property was first

attached shall receive or realize.

(C)Section 64:- The code also declares that a private alienation of

property after attachment is void.

Before passing an order for attachment of immovable property one

must check “the value of the property to be attached would be

approximately equal to the amount of E.P. I have attended one training

programme at NJA during 2012. We were shown one documentary on

improper attachment which caused huge loss to the J.Dr which cannot be

compensated in terms of money. An officer of the Civil court in that

documentary ordered to issue warrant for the attachment of 2 acres of

agricultural land capable of growing abundant crops. The said land

belongs to the J.Dr who availed a loan to purchase pre-owned auto worth

of Rs.50,000/- only. In fact the worth of the said agricultural land

attached is ten times more than the value of the suit. Due to said

attachment the J.Dr was not allowed to cultivate. It was the only source

of income for the entire joint family of the J.dr consist of 15 members.

The said land was kept unconceivable, till realization suit amount. The

entire joint family of the J.dr faced several difficulties and they suffered

from starvation. Whether the attachment is before or after the judgment,

the value of the suit and the value of the property should be carefully

compared. For the meager amounts the valuable property cannot be

attached as a whole. Such portion sufficient to satisfy the decree can only

be attached. There is a Latin maxim ACTUS CURIAE NEMINEM

GRAVABIT which means act of the court does cause harm to no man”.

Because of improper attachment ordered by the courts, the parties should

not be suffered. Ground realities should be keep in mind while dealing

with the attachment of agriculture lands and dwelling house. If the D.Hr

has shown the more valuable property for the meager amount, the court

has to direct the D.Hr to take steps with the assistance of the surveyor

survey and settlement people basing market value, to separate sufficient

portion of the land or house, subject to feasibility for attachment. The

court can return such kind of E.Ps for re-presentation with a sufficient

subject matter equal to that of the value of the decree.

(D) Rule 55 deals with “Removal of attachment after satisfaction

of decree”where---

(a) the amount decreed with costs and all charges and expenses resulting

from the attachment of any property are paid into Court, or

(b) satisfaction of the decree is otherwise made through the Court or

certified to the Court, or

(c) the decree is set aside or reversed, the attachment shall be deemed

to be withdrawn, and, in the case of immovable property, the withdrawal

shall, if the judgment-debtor so desires, be proclaimed at his expense,

and a copy of proclamation shall be affixed in the manner prescribed by

the last preceding rule.

(E) 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 JDr.

It provides that the 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 JDr is lying to attach any property

specified in the percept.

A percept seeks to prevent alienation of property of the JDr not

located within the jurisdiction of the court which passed the decree so

that interest of the decree-holder is safeguarded and protected.

(F) ATTACHMENT BEFORE JUDGMENT(Order 38 Rule 5):

(1). The court at any stage of the suit may pass the order of attachment

before the judgment.

(2) To pass such order the court has to satisfy that the defendant with

intent to obstruct or delay the execution trying to dispose off or remove

the whole or any part of the property from the local limits of the

jurisdiction.

(3) The court may direct the defendant either to furnish security or to

appear and show cause.

(4) The plaintiff shall satisfy the property required to be attached and the
estimated value.

(5) The court may pass the conditional attachment of the whole or any

part of the property.

(6) The order of attachment without complying the above conditions

shall be void.

Relevant cases:-

1. Anantula Chandrakala Vs Karim Gulam Hussain Lalani

2006(3) ALT 190.

2. Deepika Constructions Engineers and Civil contractors Vs

Garikapati Radhakrishna, 2006 (3) ALT 308

3. Adithya Electronics Vs Impex Ltd., and others,

AIR 2004 (A.P) 321.

Sections 36 to78 and Order XXI consist of 106 rules deals with

Execution proceedings. Order XXI is very vast provision of CPC. We have

to recollect the relevant Rule suitable to situation on bench and post the

E.P. to next step. The Hon’ble Supreme Court in Ghanshyam Das v.

18
Anant Kumar Sinha while dealing with provisions of the code relating

to execution of decree and orders, held that “so far as the question of

executability of a decree is concerned, the Civil Procedure Code contains

elaborate and exhaustive provisions for dealing with it, in all aspects. The

numerous rules of Order 21 of the code, take care of different situations

providing effective remedies not only to decree-holders but also to

claimant objectors, as the case may be”.

The process of execution is ocean consist of unlimited n

unpredicted waves. We cannot sail easily unless we know the relevant

methods to face each wave. We can't write the Section, Order or the Rule

as a whole on the docket. To overcome the said situation we must

18
AIR 1991 SC 2251
possess knowledge of all the steps from the day one till finality. While I

was dealing with E.P’s in my first station, I was scared to write next step

on the docket. Docket writing is not reproduction of provisions as it is.

We must cut short the provisions to the extent possible, reflecting the

whole idea behind the said provision and intention of legislature. I made

an attempt to share my perception with the Junior Officers to enable

them to sail with the E.P’s on docket without hesitation.

I. Helping Hints to deal with E.P under Rule 48.

After checking the E.P. note on the docket as Petitioner/D.Hr prays

to attach the salary of the J.Dr., to an extent of Rs.----per month as his

salary is Rs.---- p.m. Order for attachment directly if the EP is filed within

2 years. Issue notice to Jdr if the EP is beyond 2 years. On non-payment

of batta EP may be dismissed. After service of Attachment warrant on the

Drawing officer if the Jdr failed to attend before the court, set him ex-

parte and made the attachment absolute and close the EP. On

appearance of J.Dr in person or through an Advocate, an opportunity

should be given to file his counter and to contest the E.P., according to

law. In case of satisfaction of decree F.S memo is necessary to be filed by

DHr and write on docket as “F.S memo filed and recorded. EP is

terminated & attachment is raised”. Send a letter to Garnishee, intimating

the raising of the attachment.

II. Helping Hints to deal with E.P. for Attachment and sale of

movable or immovable properties(Rules 43, 54, 64 & 66).

(1) After checking of the E.P. note as D.Hr prays to attach the petition

schedule mentioned properties of J.Dr and proclaim the same for sale. If

the EP is within 2 years directly attachment warrant will be ordered. If

EP is beyond 2 years, the notice & attachment will be ordered

simultaneously.
(2) On execution of attachment warrant post the EP for filing of sale

papers. Sale papers includes draft proclamation, sale affidavit by the DHr

and Encumbrance certificate for a period of 12 years prior to the date

of attachment of the immovable property.

(3) After filing sale papers, post the EP for checking of sale papers.

(4)After checking of the sale papers write on docket as “ sale papers

checked and they are in order. Issue sale notice by--------.

(5) Next step is settlement of terms nothing but noting as “The

properties of J.Dr., situated in---------village------District. Note the

movable items/immovable properties attached, DHr value and Amin

value”.

(6) Next step is “ Proclaim and sale on---------(There should be a gap of

35 days). Publish in __________ paper.

(7) Next step is “ Proclamation is made in the village on-------.

Proclamation in –-----paper filed. Sale batta paid. Sale warrant amount is

Rs.------- as noted in sale warrant. Sale held and knocked down in favour

–----for Rs.------ being highest bidder. Post it for further hearing one

week after the date of sale.

(8) After deposit of the entire sale amount on the date of sale by auction

purchaser, the movable property has to be handed over to him on the

same day after obtaining the proper receipt.

(9) In case of immovable property on the date of sale ¼ sale amount is

be paid on the date of sale along with poundage and post the EP for

confirmation of sale.

(10) ¾ sale proceeds and sale certificate amount should be deposited

with 14 days from the date of sale.

(11) There should be a gap of 60 days from the date of sale to the date of

confirmation of sale.

(12) last step is “ sale confirmed. F.S recorded. Attachment raised”. In

case of immovable property issue cheque for Rs.------in favour of STO

concern for non judicial stamps.

(13) Sale certificate should be prepared within 3 days from the date of
receipt of NJ stamps. The true copy of sale certificate has to be sent to
the sub-registrar with a covering letter for registration. Dis. No. should be
noted in the sale certificate register. The original sale certificate is to be
delivered to the parties u/ proper acknowledgement.

(14) The period will be 15 days between the date of proclamation in the

village and the date of sale.

(15) Sale batta to be paid before 7 days of the sale.

(16) If the J.Dr filed a petition on the date of sale under O.21

R.69 CPC paying postponement, the court can adjourn the sale to

some other date within 30 days.

(17) In case there are no sufficient bidders, the sale has to be

stopped for want of sufficient bidder and adjourned the E.P., to

the date of further hearing or E.P., can be dismissed raising

attachment.

(18) If, the sale stopped on any of the above grounds fresh sale

to be ordered by the court on the petition filed by the D.Hr.

(19) The D.Hr can also participate in the sale along with the other

bidder after obtaining permission of the court under Order 21

Rule 72 C.P.C. (on separate petition ).

(20) If the D.Hr purchases the property, the decree amount may be set

off under order 21 Rule 72 clauses (2) C.P.C. (set off means the E.P.,

amount has to be adjusted towards the sale amount).

III. Helping Hints for confirmation of Sale:-

The sale of the immovable property of the E.P. schedule was

held on –-----and knocked down for Rs.----- in favour of _______

being the highest bidder.

The auction purchaser deposited the ¼ the sale amount of

Rs.--------on the same day i.e., on –------- An amount of Rs.-------

collected towards poundage out of the 1/4th sale amount of

–------.

3/4th sale process of Rs.-------- and Rs.-------- towards the

sale certificate stamp amount deposited on---------. It is in time:

No petitions to set aside the sale or to stay the confirmation are

filed or pending in this court.

As per sale warrant the D.Hr is entitled for Rs------- Hence, the

sale may be confirmed. Full satisfaction may be recorded and the E.P.

may be terminated.

A charge for Rs.---- may be ordered to be issued in favour of Sub-

Treasury Officer_____ for Non-Judicial stamps for issue of sale certificate.

Mere attachment is not complete adjudication of the EP unless the

sale is made and the sale proceeds are given the DHr. Discussion about

only attachment without touching the sale is incomplete. As such in

continuation to attachment, I have touched some points for sale which

would give complete picture of EP for attachment and the sale. The

decrees are required to be executed with jet speed, so that D.Hr will not

feel helpless having earned no fruits of the lis, even after spending

decades altogether.

Conclusion

Civil litigation is an open battle between two opposing groups i.e.,

rightful and wrongful persons. Both the groups struggle for the success.

Only rightful persons will succeed in their efforts. I would like to recall the

story of “Kshira Sagara Madanam” from BHAGAVATHAM, where the

Devathas and Asuras (Demons) rigorously churned the ocean for the

Ratnas (Treasures) emerged in the ocean. One of them is Amrut Ratna in

the Pot retrieved from the ocean. The Asuras rushed towards the pot

containing Amrut (nectar of immortal) and tried to snatch the pot and

rise rapidly for the Amrut. The Devathas and the Asuras fought for the

Amrut. The person who drinks Amrut gains victory over the inevitable

death. Lord Vishnu adorned the avtaar of Mohini and thus decided to

help the Devathas. Decked with jewels and garments, Mohini looked

beautiful. This beauty of hers attracted Asuras. Mohini offered that she

would distribute the Amrut among the Devathas and the Asuras. Both

mutually agreed. They were too busy in enjoying the dance of Mohini. In

this way, Lord Vishnu distracted Asuras from Amrut. Turn by turn the

Devathas were made to drink the Amrut and the Asuras were made to

drink Visha (poison). Lord vishnu played vital role and made serious

efforts to see that the Amrut retrieved from the ocean should reach the

real beneficiaries for loka Kalyanam.

Process of Trial is churning of the truth. The Decree is the pot and

the Money/property is the Amrut. Mere churning of truth by way of

Decree or order is not an end to the civil litigation, unless the fruits are

reached to the lap of the DHr. We must invoke the relevant provisions of

CPC as tools to do justice to the rightful parties. To do so, we all must

strive hard to understand all the relevant provisions of CPC connecting

execution for speedy implementation of decree and cut the situations

where the Dhr's holding the decree in their hands asked to swim the

ocean, for the fruits.

The maxim Interest Reipublicae Ut Sit Finis Litium which

means “in the interest of the society as a whole, the Litigation must come

to an end”. Our aim is to put an end to the litigation. Our destination is

finality. we must act as a guide knowing the safe and short way to the

destination. If we intend to worship God in the Temple on the Hill of

isolated area, we must choose the guide who knows the safe and short

way, to and fro to the Hill. Then only we will reach the Temple safely

within short time and worship God peacefully. If the guide is stranger and

unaware of the way, we would roam around the Hill forever, facing thorny

bushes, rocks, ditches, poisonous animals etc. We are chosen by the

Hon'ble H.C to act as a guide to the litigants to take them to their

destination called justice as early as possible within the ambit of Law. As

guided and suggested by Our Administrative Judge Hon’ble Sri Justice

C.V. Nagarguna Reddy garu, we must Protect our Outputs i.e Judgments,

Decrees n Orders from all unnecessary comments, the way in which the

Lotus in a mud pond does not allow the mud and dirty water to stain and

expose purity and brightness. It is possible only when we are in a position

to understand and implement the provisions of Law subject to the

situation. The innovative idea of conducting workshops enable all the

Judicial Officers to discharge the functions confidently and efficiently,

maintaining high degree of rectitude. Let us promise that we strive hard

to reach the high expectation reposed by the Hon'ble H.C on us.

Thank You.

Smt. Shammi Parvin Sulthana Begum,

B.Sc., B.L., L.L.M.,
II Addl. Chief Metropolitan Magistrate,
Visakhapatnam.
 CLAIM PETITION AND ITS RELEVANCY

IN EXECUTION PETITION

submitted by
K.Venkata Ramana Reddy
IV Additional District & Sessions Judge
Visakhapatnam
1. Execution means enforcement of directions given in a

decree by the Court of competent jurisdiction. Every party to

the suit or proceeding can approach the court for execution of

decree passed in said suit or proceeding.

2. Part II containing Sections 36 to 74 and Or.XX! Of CPC and Rules

205 to 385 Civil Rules of Practice deals with Execution ie.,

procedure to be followed in Execution Petition including for

adjudication of claims or objections of third party and also

disputes among the parties to the Execution petition. Procedure

prescribed for the adjudication of claims in Execution Petition

shall also be followed for adjudication of claim petition in respect

of attachments before judgments effected in original suit.

3. Rule 246 of Civil Rules of Practice specifies form and

requirement of an application filed under Rule 58 of Or.XXI of

CPC. As per said rule an application filed by claimant or

objector, under said rule 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

 particulars of the claim in the manner prescribed for the plaint in

a suit as in Form No.66.

4. Rule 247 of Civil Rules of Practice prescribes the

procedure to be followed if an application is admitted.

5. Rule 248 of Civil Rules of Practice prescribes procedure to

be followed for hearing such application and recording of

evidence and marking of documents therein.

6. Rule 249 of Civil Rules of Practice it is mentioned – the

provisions in Rules in 246 to 248 will also apply to the

applications under Or.21 Rules 97 & 100 of CPC.

7. In a decision ie., “ Gurram Seetharam Reddy Vs.Gunti

Yashoda (AIR 2005 AP95(FB) on the aspect of court fee

payable on claim petition Hon'ble High Court of AP held that

“The applications filed under Or.XX! Rule 58 are to be tried like

suits, but they cannot be said to be suit in reality. The Court fee

payable on such an application is as per Article 11 (1) of Court

Fees Act. The Court fee payable on appeal is same Court fee as

payable on an application under Order XXI Rule 58 as per

Section 49 of the A.P.Court Fees Act. When the application

under Rule 58 is rejected, filing of suit is provided and the Court

fee payable thereon is under Section 38 of Court Fees Act.”

 Necessity of filing claim petition or objection in Execution

petition

8. when the right, title or interest of person who is the absolute

owner of property is questioned or challenged by taking steps

for attachment and sale or seeking delivery of possession of

such property by decreeholder in Execution of a decree passed

in his favour, such true/real owner of the property will approach

Execution Court or Original Court in case of attachment of such

property before Judgment by way of claim petition.

Rules to be followed for filing Execution Petition to

avoid any claim / objection from third parties

9. Every application save or otherwise provided by Sub-

rule(1) of Or.21 for execution of decree shall be in writing signed

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

the satisfaction of Court to be acquainted with facts of the case

and shall contain in tabular form particulars as detailed in Sub-

rule (2) of Rule11 of Or.21. While giving such details the

decreeholder must mention the mode in which the assistance of

the Court is required;

10. Where application is made for attachment of any

movable property belonging to judgment debtor but not in his

possession, the decreeholder shall annex to the application an

inventory of the property to be attached containing reasonable

 accurate description of the same – (Rule 12).

11. Where an application is made for attachment of any

immovable property belonging to judgment debtor, it shall

contain at the foot:

a) a description of such property sufficient to identify the same

and, in case such property can be identified by boundaries or

numbers in a record of settlement or survey, a specification of

such boundaries or numbers; and

b) a specification of the judgment debtor's share of interest in

such property to the best of knowledge of the applicant shall

be given.

12. That an application is made for the attachment of

any land which is registered in the office of Collector, the

applicant shall comply and produce certified extract from the

register of such office specifying the persons registered as

proprietors of or as possessing any transferable interest in the

land or its revenue or as liable to pay the revenue for the land

and shares of the registered proprietors so as to ensure the

interest of judgment debtor in such property against which

decreeholder proposes to proceed for recovery of amount

payable under decree – (Rule14).

13. Under Rule 17 of Or.21 the court which receives an

 application for execution of decree shall ascertain whether such

of the requirements of Rules 11 to 14 as may be applicable to

the case have been even complied with and if they have not

been complied with, the court shall allow the defect to be

remedied then and there or within a time to be fixed by it and if

that defect is not so remedied, the court shall reject the

application.

14. Under Rule 22 of Or.21 CPC when an application for

execution is made :

a) more than two years after the date of the decree, or

b) against the legal representative of a party to the decree, or

application is made for execution of decree filed under

provisions of Sec.44-A or

c) against the Assignee or Receiver in insolvency where the

party to the decree has been adjudged to be insolvent.

15. It is obligatory on the part of Executing Court to

issue notice to the person against whom execution is applies to

show cause why decree should not be executed against him. In

case such person offers any objection to execution of decree,

under Sub Rule (2) of Rule 23 CPC, Court shall consider such

objection and make such order as it thinks fit.

16. In order to collect details of property of judgment

 debtor against whom decree for recovery of money caused to be

executed decreeholder may invoke Rule 41 of Or.21 CPC. Under

Rule 41 the decreeholder may obtain an the order of Executing

Court to examine the judgment debtor under Sub-rule (1)

whether any or what debts are owing to judgment debtor and

whether judgment debtor has any and what other property and

means of satisfying the decree; under said Sub-Rule the court

may at the instance of decreeholder pass an order for

attendance and examination of the judgment debtor and for

production of books or documents and in case of disobedience of

such order as the judgment debtor may be detained in civil

prison for a term not exceeding three months under Sub-Rule(3)

of Rule 41.

17. In case precaution is taken and ascertained that the

property sought to be attached and sold for recovery of decretal

amount is the absolute property of judgment debtor and no

other person has any right, title or interest over it claim petitions

in respect of said property can be avoided. While bringing

property of judgment debtor for sale either movable or

immovable, decreeholder must take all precautionary steps to

ensure that judgment debtor is absolute owner of such property

and Executing Court must also verify the title of judgment debtor
 to such property strictly with reference to the documents

produced in that regard.

18. If it is brought to the notice of Executing Court that

some third parties have claim over the debt due to the judgment

debtor the Executing Court is required to enquire into such

claim of third parties by giving notice to said third party and to

pass appropriate order on such claim of third party. vide (Rule

46A Rule 46 E of Or. 21 CPC).

PROCEDURE FOR ADJUDICATION OF CLAIM PETITIONS

19. The procedure to be followed for adjudication of

claims and objections to the attachment of the property before

judgment under Or.38 of CPC and under Or.21 CPC is one and

the same. The petition filed under Or.38 Rule 8 CPC to be

continued even beyond the date of decree of suit and that the

said application has got to be tried as if it is a plaint as per Or.21

Rule 58(2) & (4).

20. Under Rule 58 where any claim is preferred to or any

objection is made to the attachment of any property attached in

execution of decree on the ground that such property is not

liable to said attachment, the court shall proceed for adjudicating

the claim or objection in accordance with the aforesaid

provisions contained in Civil Procedure Code and Civil Rules of

 Practice.

21. Proviso of Rule 58 shows the circumstances under

which said claim or objection not to be entertained i.e.,

a) where, the property attached has already sold even before

the claim is preferred or objection is made;

b) where the Court considers that such claim or objection was

designedly or unnecessarily delayed.

22. The Executing Court dealing with said claim or

objection under sub rule (2) of Rule 58 shall decide all questions

including questions relating to right, title or interest in the

property attached arising between parties to the proceeding or

their representatives not by a separate suit.

23. In a decision between Muvvaloa Ramachandra

Rao and Vs.Kuricheti Ravi and another (1999(3) ALD 101)

wherein the Hon'ble High Court of A.P. Observed as “ The

executing Court is competent to dismiss the objection in limine

where it considers that the objection or claim is designedly or

unnecessarily delayed, exercising its powers under Clause(b) of

proviso to sub-rule(1) of Rule 58 of Order 21 of the Code of Civili

Procedure and on that count, refuse to investigate the claim; but

if the Court does not exercise the said power, as its inception, in

terms of the above provisions, then, under sub-rule (2) of Order

 XXI Rule 58 of the Code, the executing Court is bound to decide

all questions including the questions relating to right, title or

interest in the property attached arising between the parties to

the proceeding and relevant to the adjudication of the claim or

objection after giving opportunity of enquiry to the rival parties

to the objection.”

24. In a decision between Gaffala Dastagiri Reddy Vs.

Pasala Seshareddy and another (AIR 1978 AP 299) where

the Hon'ble Hight of Court of Andhra Pradesh held as

“subsequent application for removal of attachment under Rule

58 by the assignee of the decree after obtaining the recognition

under Rule 16 was not barred on the ground of dismissal of

previous application on preliminary ground for want of

recognition by proper Court.”

25. In a decision between Venkata Suryanarayana

Jagapathi Raju Bahadur Vs.The Official Receiver,

E.G.District (AIR 1965 AP 451) where the Hon'ble High

Court of Andhra Pradesh held that “The Official Receiver can

prefer a claim petition under Or.21 Rule 58 of CPC.

26. In a decision between Ramarao

Vs.K.Ranganayakulu, (AIR 1964 AP 1 (FB)) it was held that

“the transferee of a decree from the Judgment debtor can file an

 application under Or.21 Rule 58 of CPC to remove an attachment

of the decree made subsequent to the transfer after he gets

recognition of assignment under Or.XXI Rule 16 of CPC”.

27. In a decision between M/s.Dhanalakshmi G.Shah

Vs.Shuseela Siva Prasad Masurakar (AIR 1981 SC 478)

where the Apex Court held that “Claim made on the basis of

agreement of sale is not maintainable”.

28. Under sub Rule (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 orders as in the circumstances of the case it deems

fit.

29. Under Sub rule (4) of Rule 58 the Order made of

adjudication of said claim or objection shall have the same force

and be subject to the same conditions as to appeal or otherwise

as if it were a decree.

30. Under Sub rule (5) of Rule 58 where a claim or an

 objection is preferred and court under proviso to Sub rule (1) of

Rule 58 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 result of

said suit, if any, an order so refusing to entertain the claim or

objection shall be conclusive.

31. Under Rule 59 where the claim was preferred or

objection was made the property attached 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.

32. Under Proviso added to Rule 92 (1) any property

when sold in execution of a decree pending the final disposal of

any claim to, or any objection to the attachment of, such

property, the Court shall not confirm such sale until the final

disposal of such claim or objection.

33. As per Rule 92(4) where a third party challenges the

judgment debtor's title by filing a suit against the auction

purchaser, the decreeholder and the judgment debtor shall be

necessary parties to the suit.

34. As per Rule 92(5) if the suit referred to in sub-rule

(4) is decreed, the Court shall direct the decree holder to refund

the money to the auction purchaser, and where such an order is

passed the execution proceeding in which the sale had been

shall, unless the Court otherwise directs, be revived at the stage

at which the sale was ordered.

35. Under Rule 95 where the immovable property sold is

in the occupancy of the judgment debtor or of some person on

his behalf or of some person claiming under a title created by

the judgment debtor subsequently to the attachment of such

property and a certificate in respect thereof has been granted

under Rule 94, the court shall, on the application of the

purchaser, order delivery to be made by putting such purchaser

or any person whom he may appoint to receive delivery on his

behalf in possession of the property. In case such persons

refused to vacate the same delivery shall be effected by

removing said person who refuses to vacate by removing said

person.
36. Under Rule 96 where the property sold is in the

occupancy of a tenant or other person entitled to occupy the

same and a certificate in respect thereof has been granted under

Rule 94, the court shall, on the application of the purchaser,

order delivery to be made by affixing a copy of the certificate of

sale in some conspicuous place on the property, and proclaiming

to the occupant by beat of drum or other customary mode, at

some convenient place, that interest of the judgment debtor has

been transferred to the purchaser.

In case of resistance of delivery of possession to decreeholder or

purchaser under Rule 97

a) where any person resisted or obstructed in obtaining

possession of such property by holder of decree for

possession of such immovable property or the purchaser of

such property sold in execution of decree decreeholder or

purchaser shall make an application to the court complaining

of such resistance or obstruction under Rule 97(1). On such

application under Rule 97

b) court shall proceed to adjudicate upon the application in

accordance with the provisions in Or.21 CPC ie., Rule 101.

37. Under Rule 99 when holder of decree for possession

of property or where the purchaser of the property sold in

execution of decree possessed in other than the judgment debtor

 such immovable property said person may make an application

to the court complaining of such dispossession. On such

application the court under Rule 99(2) shall possess to

adjudicate upon the said application in accordance with the

provisions containing in Rule 101.

38. Under Rule 101 all questions including questions

relating to right, title or interest in the property arose between

the parties to the proceedings on an application and Rule 97 or

Rule 99 or their representatives and relative to the adjudication

of application shall be determined by the court dealing with the

application not by a separate suit.

39. So in view of the non-obstantiq clause in Rule 101,

Court exercised jurisdiction under Rule 101 deemed to have

jurisdiction to decide all questions referred to in that rule.

40. Under Rule 100 on determination of the

questions referred to in Rule 101 the court shall in accordance

with such determination :

a) make an order allowing the application and directing that the

applicant be put into the possession of the property or

dismissing the application; or

b) pass such other order as, in the circumstances of the case, it

may deem fit.

41. Rule 98 & Rule 100 shall not apply to resistance or

obstruction in execution of decree for possession of immovable

property by a person to whom judgment debtor transferred the

property after institution of suit in which decree was passed or to

the dispossession of any such person – Rule 102.

42. Under Rule 103 where any application has been

adjudicated upon under Rule 98 or Rule 100, the order made

thereon shall have the same force and be subject to the same

conditions as to an appeal or otherwise as it were a decree.

43. Under Rule 104 Every order made under Rule 101

or 103 shall be subject to the result of any suit that may be

pending on the date of commencement of the proceeding in

which such order is made, if in such suit the party against whom

the Order under Rule 101 or Rule 103 is made has sought to

establish a right which he claims to the present possession of the

property.

44. Under Rule 105(2) when applicant under any of the

rules under Or.21 is not appearing when the case is called on the

day of hearing or any other day to which hearing adjourned, the

court may dismiss the application.

45. Under Rule 105(3) where the applicant appears and

the opposite party to whom the notice has been issued by the
 Court does not appear, the Court may hear the application

exparte and pass such order as it thinks fit.

46. Explanation added to Rule 105 clarifies that

application referred to Rule 105(1) includes a claim or objection

made under Rule 58.

47. Rule 106 enables the applicant and also opposite

party to set aside order passed against them under sub rule (2)

of Rule 105 by showing sufficient cause for their non-appearance

when the application was called on for hearing but they must

approach the court with such application within 30 days by

giving notice to opposite party.

48. As per amendment made by State of Andhra Pradesh

added as Sub Rule 4 after Sub Rule 3 of Rule 106, the provisions

of Section 5 of Limitation Act, 1963 shall apply to applications

under Sub rule 3 of Rule 106.

49. Therefore, the executing court shall decide in a claim

petition filed by third party in any execution petition with respect

to right, title, interest to the execution petition schedule property

without asking third party to file separate suit. Similarly the

executing court shall also decide right title interest over the

property between parties in the E.A filed under Rule 97 or Rule

99 of Order XXI CPC without asking parties therein to file suit for
determination of their right title interest over such property so as

to avoid multiplicity of litigation and to put an end to the

litigation between such parties.

 1

LIMITATION FOR VARIOUS APPLICATIONS DURING EXECUTION

BY
K. Prakash Babu,
I Additional Junior Civil Judge, VSP
G. Sreenivasa Reddy
V Additional Junior Civil Judge, VSP

Introduction:

The importance of Law of limitation is accentuated in the Law Commission of India

89th report on Limitation Act,1963 as follows:-

“The policies underlying the law of limitation are ultimately based on justice and
convenience. An individual should not live under the threat of a possible action for
an inderminate period, since it would be unjust. Again the defendant should be
saved the task of defending stale causes of action, as it is often inconvinient.
Further, vigilance in the pursuit of rightful claims should be encouraged so that
there are the ethical or rational justifications for the law of limitation. All that has
been said on the subject can be summarised by stating that the law of limitation
rests upon three main foundations:-

1. Justice
2. Convinience
3. The need to encourage diligence”

The Law of limitaion in India is based on The Limitation Act, 1963. This Act was
passed on the basis of Law Commission Report on the Limitation Act,1908.
Limitation is provided to every aspect of litigation be it may be suit, execution or
any proceedings before a Civil Court. The question of limitation runs like a thread
throughout the web of litigation. This paper confines its scope only to the limitation
pertaing to various applications in execution proceedings. This paper mainly deals
with the provisions of Limitation Act, 1963 and also some provisions of CPC where
they touch upon Limitaion aspect in exectuion proceedings.

Limitation provisions for Execution:

Application of Sec.5 of Limitation Act, 1963:-

Sec 5 of Limitation Act,1963 does not apply to suits and applications under any of
the provisions of Order 21 of the Code of Civil Procedure, 1908.
But in State of AP, Sub rule 4 after Sub rule 3 in Rule 106 of Order 21 was
insterted as follows:
“4) The provisions of Section 5 Limitation Act, 1963 shall apply to all
 2

applications under sub rule 3.”

It was held by the Hon'ble High Court of AP that Executing court can entertain
application filed under Sec.5 of Limitation Act,1963 to condone delay in filing
application to set aside exparte orders passed under Rule 105 of Or.21 CPC in view
of introduction of sub rule 4 in Rule 106 of Or.21 CPC by AP High Court 1.

Section 15 (1):-

Where the institution of a suit or execution of a decree has been statyed 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.

Sec. 12(2), 18 and 19:

So far as applications for execution of a decree or order is concerned, the

applicability of Sections 12(2),18 and 19 are excluded under the Act 2.

When a court passed a decree under Order-20 as per the definition section II
(2) of CPC then the court passed the decree in general executes for its realization
to implement its judgment. It is worth to mention and we are all well aware that
the difficulties of litigant in India begin when he has obtained a decree. The same
was observed by prevy counsel in Kuer Jung Bahadur Vs. Bank of Upper India Ltd.,
AIR 1925 Pg. 448. Even after 90 years and 70 years of independent India still the
agony in the society and particularly litigant her customer of the court. It is not our
endeavour to say that should be continued it is our ensharine duty to see that the
decree which was passed by a court having competant jurisdiction to get it
executed to enjoy the fruits of the decree by the decree holder.

That the limitation for execution for execution of decree, starts immediately
after passing its decree. The Limitation Act, 1963 which was enacted and also
applicable as per Part-II of Limitation Act u/sec. 3 subject to theprovisions
contained in secs.4 to 24 of the said Act every suit instituted appeal preferred and
application made after the prescribed period shall be dismissed although limitation
has been set up as defence. Application defined u/sec.2b of the said Act, which
includes the petition. Thus, the Limitation Act, 1963 is applicable to the execution
petitions.

1
2
 3

The Limitation Act which was prescribed and described in the schedule
annexured to it is upper limit so far to the application for the execution in
executing decrees passed under O-20 CPC. There are several kinds of decrees
mentioned in Code of Civil Procedure and the courts in general passed decrees.
--for recovery of money
--for recovery of immovable property
--for delivery of movable property
--for possession and mesne profits
--for specific performance of contract
--for specific performance of lease
--in pre-emptiion suits
--suit for account between principal and agent
-- suit for resolution of partnership
--compromise decree
--suit for restitute of conjugal life
--for eviction and so on so forth.

The limitation period for the execution of the above decrees passed by the
courts ingeneral and the Governing provisions are dealt with the secs. 36 to 75 ,
Sec.144,146 and 148 of the Civil Procedure code, O-XXI of CPC, Chpter-16 pf CRPC
containing the rules 205 to 285 and Limitation Act- Articles 125 to 129 and 134 to
137 so far executionproceedigns are concerned and they are be relevant whcih are
tobe looked into while dealing with the execution petition.

So far as the decree obtained from the small causes suts are concerned, a
court which is having the combined jurisdiction of the orginal and small cause
jurisdiction is treated as two courts for thepruose of execution small cause decree
can directely be executed only agaissnt movable property and not agaisnt the
immovable properties. In case, when a small cause corut decree to be executed
agasisnt the immovable property the decree shall be transferred to the court
exercising original jurisdiction though, it m ay be the same court exercising the
original jurisdiction.

It is important to note that there is no application of limitation for adding

legal representatives in execution when it is dealing with the O-XXII of CPC and the
relevant provisions of the Secs. 50,52 and 146 of CPC. The only condition imposed
is that when a decree sought tobe executed against legal representastives O-XXI
RR-22 notice is compulsory apart from O-XXI R-22 CPC a notice called notice
U/sec.50 is also being issued in general. In case of a money decree legal
representatives of the deceased decree holder have to produce possession
certificate for executuion of money decree with an exception that it is proved as a
 4

joint Hindu Family decree to which theapplicant succeeded by the survivorship and
not by succession then there is no need for production of such certificate held--
1992(1) ALT Pg.334. A.P.

What is the period of limitations prescribed for various petitions or

applications in executuion:

Firstly, Article 125 to record an adjustment or satisfaction of a

decree 30 days when the payment or adjustment are made.

For the above said recording payment the judgment debtor has to
apply within 30 days of such payment within the period to the court.
There is no limitation for the decree holder reporting such adjustment the
same to the court. When the same is denied by the decree holder there is
no need to decide said fact and the court can proceed with the petition.

Secondly, Article 126 for recording of the payment of instalments the

period of limitation is 30 days. It is not maintainable after 30 days of
passing a decree and the time may be extended if a time has given for
payment for the subsequent instalments and this article is not applicable
thereon.

Setting aside sale of property in execution which are filed under O-

XXI Ruesl-89,90 of CPC.

When the amount is deposited and the sale is sought to be set

aside falls under O-XXI Rule 89.
When there is an irregularity or fraud in conducting the sale, it
falls under O-XXI Rule 90.

When there is no title to the judgment debtor agaisnt

theproperty, he falls under O-XXI Rule 91.

As per article 127, to set aside a sale as described above in exeution of a

decree, the prescribed period of limitation is 60 days (substituted by the act of 104
of 1976 sec.98 for the words 30 days).

But, for setting aside the sale by depositing amount is still 30 days Under O-
XXI R-92.

So far as thepart payment of purcahse money incase of sale of immovable

 5

property is concerned the governing ruels are : under O-XXI Rulles 84 and 85.

The period of limitation for the depositing of 25% of the sale consideration
should be paid immediately and for the remaining balance of 75%

Balance shuold be paid before the court closes on the 15 th day from
the sale of the property.

There is an amendment of Hon’ble High Court of Andhra Pradesh for

the Rule 85 – time for payment in full of prucahse money and the general
stamp for certificate under Rule-94 or the amount required for such
stamp, shall be deposited into court by the purchaser before the court
closes on the 15th day from the sale of the property.

Provided that in calculating the purchase money to be so deposited

the prucahser shall have advantage of any set off to which he m ay be
entitiled under rule-72.

Inability of auction purchaser to deposit amount of non-judicail stamps

within time renders the sale a nullity and in effective held in the case of

Kudiyala Rama Vs. Vottikolla Somaraju AIR 2003 A.P. 215

Application to set aside the sale on deposit the Article 127 of

Limitation Act applies to set aside the sale of property and the same was
decieded in the case of
Banda Subbarayudu Vs. Tylam Viswanadha Rao (2010) 1 SC 168.

So far as sale is concerned the Hon’ ble High Court amenement for the Sub
Rule -1, there is a proviso to Sub Rule (ii)1 provided taht where the immovable
property sold is liable to discharge a portion of the decree debt the payment under
clause b of this sub rule need not exceed such amount as under the decree the
owenr of the property sold is liable to pay.

Under O-XXI Rule-92 the sale which was made in the execution will become
absolute on the date of the confirmation of the sale, when no application is filed
under Rule 89,90 and 91. The limitaion is prescribed as above under O-XXI Rule-
95 – the delivery of property in occupancy of judgement debtor and the limitation
for this rule to the auction purchaser starts fromt he date of the issue of the
 6

certificate. If a petition for delivery is not filed within time, the only remedy is to
file a suit :
Held in the case of Pattan Kadhir Khan Vs. Pattan Sardar Khan, (1996) 5 SC
48 followed in Gampa Srinivasa Ramesh Kumar Vs. Ponagani Venkata
Ramaiah 2002(4) ALT 639.

Under Art.134 for the delivery of the possession of the immovable

property to the auction purchaser the period of limitationis only one year.

For resistance of the delivery of the possession, whenever an obstruction

was raised for the possessiono f the delivery of the property to the decree
holder or the purcahser in execution a decree, 30 days from the date of
the such resistance to be filed Under O-XXI Rule-97 of CPC where Art.129
of Limitation Act prescribe the limitation. It is to be noted taht no petition
can be received beyound 30 days from the date of obstruction for the
removal of the obstruction
as Held by the Hon’ble Supreme Court in the case of “Brahma Deo
Chowdary Vs.Rushikesh Prasad Jaiswal and another 1997(2) Supreme
Court Pg.660. The cause of action for the construction removal arises from
the first obstruction not from the subsequent obstruction .

Under Art.128 of LimitationAct if a 3rd party is removed or dispossed

from immovable propety which is in his possession, in execution of a
decree agasinst another person then he is entitiled to come to the court
and seek for his restituion under O-XXI Rule-99 of CPC and period of
limitationis there for 30 days under the abvoe article. If he fails to do so,
the remedy left to him is filing the suit as Held in 1978(1) Andhra Weekly
Reporter pg.526.

The limitation for the execution for the decee for mandatory
injunctions is 3 years and permanent injucntion is 12 years provided
under article 135 and 136 respectively.

When any application in exectuion which does not fall under the
above provisions of Limitation Act will fall under Art.137 which is residary
article and which lays down a period of limitation 3 years for such
applicationin regarding the commencement of the period of limtiation for
an application to deliver possession under O-XXI R-95 now laid down by
the Hon’ble Supreme Court 1997(1) ALT at pg.20 which commences from
the date of conformation of the sale.
 7

ARTICLE 135:

Description of application Period of Limitation Time from which the period

begins to run
For the enforcement of a Three years The date of the decree or
decree granting a where a date is fixed for
mandatory injunction performance, such date

Article 135 is applicable only for enforcement of decree granting mandatory

injunction and does not apply to prohibitary injunction.

In a suit seeking relief for mandtory and perpetual injunction, Mandatory part of
the relief is governed by Art 135 while perpetual part of the decree is governed by
Art.1363.

Where decree was passed in three parts namely perpetual injunction, mandatory
injunction and costs but execution petition was filed only for enforcement of
mandatory injuction and no mentoion was made about recovery of costs, then such
exectuion petition would be covered by Art.135 and not Art.136 and hence petition
filed after lapse of six years would be barreed by limitation 4.

Even though the proceedings for the excclusion of decree with respect to the
mandatory injuction are barred by limitation under Art.135, the decree for delivery
of possession does not become infructuous or inexecutable 5.

Period of limitation starts from the date of appellate court decree and not from trial
court decree6.

ART 136:

Description of application Period of Limitation Time from which the period

begins to run
For the execution of any Twelve years When the decree or order
decree or order of any civil becomes enforceable or
court where the decree or any
subsequent order directs
any payment of money or
the delivey of any property

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to be made at a certain
date or at reecurring
periods when default in
making the payment or
delivery of respect of which
execution is sought, takes
place:

Provided that an application

for the enforcement or
execution of a decree
granting a perpetual
injunction shall not be
subject to any period of
limitation.

Period of limiation for execution of decree of 12 years begins to run from date on
which decree becomes enforceable and not when decree becomes executable 7.

If a decree is not in a form capable of execution, this artilce does not apply and
time does not run under the Act8.

Where words are fairly capable of two interpretations, one of which assists the
decree holder to obtain the fruits of his decree, and the other prevents him from
doing so, that interpretation which assists the decree holder should be accepted 9.

Where, by the mistake of the Court, a decree bears a date different from the date
of the judgment, and being misled thereby the decree -holder applies for execution
within the prescribed period from the date as found in the decree, the execution
application will be regarded as being in time on the principle of the maxim: actus
curiae neminem gravabit – An act of the Court shall prejudice no man 10.

An application for transfering a decree to another court for execution is not a

substantinve application for execution. An order transferring decree is only a
ministerial order and would not extent period of limitation for filing application for
exectuion of a decree before the transferee court11.

An application for final decree in redemption suit is, as in the case of an application

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for a final decree in a suit for sale or foreclosure, one in the suit itself and not one
for the execution of the preliminary decree12.

After a preliminary decree has been passed in a partition suit, the proper course
for the plaintiff desiring an absolute separation of his share, is to apply for a final
decree. Such an application is not one for execution. There is in fact no limitation
for such an application13.

An application for restitution under Sec.144 of C.P.C is an application for the

execution of a decree and consequently Art.136 will apply to the case 14.

ART 125:-

Description of application Period of Limitation Time from which the period

begins to run

To record an adjustment or Thirty days When the payment or

satisfaction of a decree adjustment is made.

Where payment is made outside Court for adjustment and satisfaction of the
decree but no certificate was accordingly issued by the credtor the debtor must file
application under O.21 R.2 within one month15.

The period of limitation for an application by the judgment debtor under Sub rule 2
of O.21 R.1 is 30 days under Art.125 and an adjustment cannot be taken note of
by the executing court unless it is recorded within 30 days 16.

When payment was made by judgment debtor outside the court which was not
recorded and certified under O.21 R.2(2) C.P.C and execution proceedings were
taken by decree holder, the judgment-debtor cannot be permitted to plead
payment after expiry of 30days from the date of payment 17.
Ther is no specific article in the Limitation Act for certification by the decree holder
under O.21 R.2 sub-rule (1) of the C.P.C. This article does not govern such
certification18.

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Bar of limititation is not applicable to the plea of payment as a defence in

exectution proceedings- Art 125 not attracted19.

ART 126:

Description of application Period of Limitation Time from which the period

begins to run
For the payment of the Thirty days The date of the decree
amount of a decree by
instalments

An application for payment of the amount of a decree by instalments may be made

under O.20 Rule 11 (2). It shall be made within 30 days from the date of
decree(earlier it was 60 days)20.

Where an application for payment of the amount of a decree is actually entertained

by the Court after the expiry of the period presecribed and an order is passed
allowing the application, the Court will be cosidered to have decided that the
application was withing time and the parties would be bound by such order 21 .

Art. 127:

Description of application Period of Limitation Time from which the period

begins to run
To set aside a sale in Sixty days The date of the sale
execution of a decree,
including any such
application by a judgment
debtor

An application for declaration that the sale was void is not one to set aside the sal
eand therfore will not come within the purview of this Article 22.

Where a sale is not void but is only voidabe, it can only be avoided by means of an
application to set it aside and such application must be made within the period of
thirty days prescribed by this article23.

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The following are the instances of void and voidable sales:

a) erroneous decision of court as to who are legal representatives and

impleadment of wrong persons as legal representatives of the deceased judgment-
debtor – Sale is not void even against the true legal representatives of the
judgment debtor.

b) Failure to serve ntoice under O.21 R.22 makes the Sale Void.

c) Notice under O.21 R.66 Not give- sale is not nullity.

Whether the application is under any of te rules in O.21 like R.72, R.89 to 91 or is
one under Section 47 of the CPC, the article applicable is Article 127 24.

Confirmation of sale before last date of limitation for filing of an application under
O.21 R.92, 89, 90, 91 to set aside sale is improper 25.

Art.128:

Description of application Period of Limitation Time from which the period

begins to run
For possession by one Thirty days The date of the
dispossessed of immovable dispossession
property and disputing the
right of the decree holder
or purchaser at a sale in
execution of a decree

A person who is dispossessed in exectuion proceedings is not bound to file an

application under O.21 R.100 C.P.C complaining of dispossession, but he can
straightaway file a suit for recovery of possession, in which case the suit will be
governed by the twelve years of limitation.

Application for restoration of possession under S.144 – Limitation under Art.136

and not Art.128 would apply.

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Under this article, limitation begins to run from the date of dispossession. Where
possession is devlivered by a Court Amin the date of delivery of possession by the
amin and not hte date of his report as to such delivery is the starting point.
Art.129:

Period of Limitation Time from which the period

Description of application begins to run
For possession after Thirty days The date of resistance or
removing resistance or obstruction
obstruction to delivery of
possession of immovable
property decreed or soold
in execution of a decree

It is the obstruction complained of in an application under O.21 R.97 C.P.C which

should alone be taken into consideration and not the earlier resistance for the
purpose of computing the period of limitation under Art.129 of Limitation Act 26.

Application for police help for possession after removing resistance or obstruction
to delivery of possession of immovable property is by itself neither an application
for possession nor it is an application under O.21 R.97 CPC. Police aid is an aid to
execution, not the execution itself and the provisions of Art.129 has no application
for resorting to such a special legal procedure 27.

Art.134:

Description of application Period of Limitation Time from which the period

begins to run
For delivery of possession One year When the sale becomes
by a purchaser of absolute
immovable property at a
sale in execution of a
decree.

Other provision relating to limitation in execution proceedings:-

Proviso to Sub rule 3 of O.21 R.40- In order to give time to the JDR to satisfy
decree, the Court may leave the judgment debtor in the custody of the officer of
the Court for a specified period not exceeding 15 days.

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Time limit for deposit of 1/4th sale proceeds – Immediately after declaration of
sale. If Dhr is the purchase may be dispensed with. - Or.21 R.84

Time limit for deposit of 3/4th sale proceeds - 15 th day from the sale of the
property under Or.21 R.85

Time for sale – Order 21 Rule 28 CPC:

For immovables - after expiry of 15 days from the date on which the copy of
proclamation is affixed on court notice board.

For movable – it is 7 days.

Notice under O.21 R.22 CPC :

If below 2 years form decree no notice under O.21 Rule.22 CPC be sent. Straight
away orders may be passed i.e., NOTICE AND ATTACH BY.

Application of Sec.5 to the execution petition under O-XXI Rule 106 setting
aside the orders passed etc. Sec.5 is not applicable to any execution application
filed beyond prescribed period of limitation. So far as Andhra Pradesh is concerned,
the High Court amendment for the orders passed udner O-XXI R 106, where the
period of limitation is 30 days after the provision sube rule 3 of Rule 106 sub rule 4
is inserted, the provision of Sec.5 Limitaion Act 19963 shall apply to all applications
under Sub rule 3 “where and in so far as a decree or order is varied or reversed
and the case does not fall within the scope of section 47 or section 144 the court of
first instance shall on the application of any party affected by teh decree or order,
cause such restitutuion to bemade as will, so far as may be place theparties int
heposition which they would have occupied but for such decree or orderm on such
part thereof as has been varied or reversed.

So therefore, it is clear and as for the Limitation Act, the act of limitaion
extinguishes remedy not the right. Therefore, one should cautious to protect the
remedy while executing the decree to enjoy the fruits of the same which the
decree holder got as right. The observation in the case of Kaur Jagh Bahadur shall
not be there before the courts particularly executing courts with the help of these
provisions of Law of Limitation, 1963.
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