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Report No. 27

Order XXI, rule 5

Under local Amendments1, in cases where the courts are situated within the same State, the decree can be sent for execution to the transferee court directly, instead of through the District Court. It is, however, considered that the District Judge would be in a position to know and check up whether the court to which the papers are sent through him, is the proper court. Hence no change is recommended.

1. See amendments made by Allahabad and Bombay High Courts.

Order XXI, rule 11

A recommendation has been made in the Fourteenth Report1-2 to remove certain columns from the form of application for execution of decree. It is, however, considered that the particulars to be mentioned in such columns, evert though many of them can be ascertained from other records, serve a useful purpose, inasmuch as they give all the relevant information at one place. Hence no change is suggested.

1. 14th Report, Vol. I.

2. See also Civil Justice Committee (1925), Report, p. 383, bottom.

Order XXI, rule 11 (2) and Bombay Amendment

Order XXI, rule 11(2) (j) (ii) provides for mentioning "attachment and sale" or "sale without attachment" in the application for execution. It does not expressly mention simple attachment. The local Amendment made by the Bombay High Court, adds the words "by the attachment of". Cases of simple attachment may arise when a decree or debt or money in custody of a public officer, etc., is to be attached.

It is, however, considered unnecessary to adopt this amendment, as the residuary clause in rule 11 would suffice.

Section 51 (b), it may be noted, covers attachment simpliciter.1

1. Amulya v. Pashubati, AIR 1951 Cal 48 (50), para. 7.

Order XXI, rule 11A (New)

This is new. Since section LI, proviso, now limits the grounds on which a judgment-debtor can be arrested (after the 1936 amendment), it is desirable to provide that the application under Order XXI, rule 11 should state the grounds on which arrest is sought for. This will assist the court in taking action under Order XXI, rule 37 (notice to show cause), and also further proceedings under Order XXI, rule 40. It has been held1, that the existence of the circumstances mentioned in section 51, proviso (a) to (c) should be alleged either in the execution application or in an accompanying affidavit. Unless such a circumstance is alleged (it was pointed out), the court cannot think of the circumstances and, in its absence, the court cannot take action under Order XXI, rule 37.

It may be added, that section 51 is mandatory and even when an order is passed ex parte, its provisions have to be complied with2-3.

1. Harpal Singh v. Hira Lal, AIR 1955 All 402 (403), para. 7 (Raghubar and Chowdhry, JJ.).

2. T. Kunhiraman v. Madhavan Nair, AIR 1957 Mad 761. An earlier decision (AIR 1948 Mad 9) took a contrary view.

3. B.K. Puttaramaniah v. H.1.E. & Sons, AIR 1959 Mys 94.

Order XXI, rule 16

(1) The Calcutta Amendment which, while not dispensing with notice, allows the execution to proceed1, has been considered. It is unnecessary to adopt this in the Code2.

(2) The Bombay Amendment, providing that any payment, etc., not certified or recorded under Order XXI, rule 2 shall not be recognised by the court hearing an application under Order XXI, rule 16, appears to be unnecessary. That is the position even apart from such amendment3.

1. Sailendra v. Bank of Calcutta, AIR 1948 Cal 131 (132), para. 10 (Chakravarti and Ellis JJ.).

2. Calcutta Amendment follows the Report of the Civil Justice Committee (1925), p. 405, para. 11.

3. See Mulla CPC, (1953), pp. 759-760.

Order XXI, rule 16 and transferee court

As to whether the power under this rule can be exercised by a court to which the decree may be transferred for execution, the matter has been dealt with separately1.

1. See amendment proposed to section 42.

Order XXI, rule 17

1. This carries out the recommendation made in the Fourteenth Report1-2. The object is to require the court to allow a defect in an application for execution to be remedied. (The existing rule leaves a discretion to the court to reject the application, the amendment takes away the discretion.) Detailed provisions have also been made for cases where there is a dispute about the correctness of the amount stated in the application.

2. In drafting the provision, assistance has been taken from the Calcutta Amendment. See also the amendments made by Madras, Allahabad, Patna, etc., High Courts.

1. Cf. 14th Report, Vol. I.

2. See also Civil Justice Committee (1924-25), Report, p. 384, para. 12 and p. 406, para. 12.

Code of Civil Procedure, 1908 Back

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