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Report No. 27

Order XXI, rule 24 (3)

Some High Courts have made local amendments, which require that the day on or before which the process should be returned should be specified1-2.

It is considered unnecessary to adopt this amendment, which is of a minor character.

1. After the date fixed for return, execution is not valid. See Gurdial v. Emp., ILR 55 All 119: AIR 1933 All 46 (Pullan J.).

2. See also Civil Justice Committee Report (1925), p. 406, para. 13 to same effect.

Order XXI, rule 26

A recommendation has been made in the Fourteenth Report1-2 to the effect that where a judgment-debtor applies for stay of execution under this rule, the court shall require him to furnish security or impose conditions under the rule, before granting stay. This recommendation was made in view of the feeling that the courts failed to discriminate between honest and dishonest judgment-debtors and thus failed to exercise properly the discretion left to them. It is, however, considered that the existing provision should continue, and that making it mandatory would cause hardship.

Hence no change is suggested.

1. 14th Report, Vol. I.

2. See also Civil Justice Committee (1924-25) Report, p. 406, para. 14.

Order XXI, rule 29

Order XXI, rule 29, C.P.C. runs as follows:-

"Where a suit is pending in any court against the holder of a decree of such court, on the part of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided."

1. The object of rule 29 is to

(i) prevent the judgment-debtor from being compelled to satisfy the decree when it might be proved that on balance he owed less than the decretal amount (or even nothing at all1);

(ii) prevent multiplicity of proceedings2;

(iii) to provide for adjustment;3

(so that the successful plaintiff in a pending suit need not take out execution).

2. Therefore, the words "decree of such court" should be amplified to cover cases where the decree is of some other court, but is being executed by the court in which the suit is pending.

3. At present there is a conflict of decisions on this point. One view is, that a court to which the decree of any other court is transferred, can act under this rule4-5

4. But another line of cases takes a narrower view6-7-8.

5. The wider view bases itself on the principle that the transferee court becomes the "court" which passed the decree, (section 37) and would, under section 42, become clothed with the same powers9. The narrower view justifies itself on the language of the section, which requires identity of the court passing the decree and the court in which the suit is pending.

To clarify the position, necessary change is proposed, adopting the wider view.

6. As to the converse question-whether the court in which a suit is pending, can act even it the decree is transferred to another court, Bombay High Court has held that it can10.

1. Mahesh v. Jogendra, AIR 1928 Cal 222 (224).

2. Mahesh v. Jogendra, AIR 1928 Cal 222 (224) (Page J.).

3. Kannamnal v. Muthu Kumarswami, AIR 1936 Mad 102 (103) (Beasley C.J.).

4. Kassamal v. Gopi, 1888 ILR 10 All 389 (393).

5. Saradkripa v. Camilla Union Bank Ltd., AIR 1934 Cal 4 (Jack and Nag. JJ.).

6. Inavet v. Umrao, AIR 1930 All 121 (Sulaiman Acting C.J. and Kendall J.).

7. Khemchand v. Rambabu, AIR 1958 MP 131 (132).

8. Ujagar Singh v. Puran Singh, AIR 1930 Loh 961 (968), (Walker J.).

9. As to the general position, see Maharajah of Bobbili v. Narasa Raju, AIR 1916 PC 16.

10. Narsidas v. Manhar Singh, AIR 1931 Born 247 (249).

Code of Civil Procedure, 1908 Back

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