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Report No. 27

Order XXI, rule 31

1. This carries out the recommendation made in the Fourteenth Report1-2. In a decree for delivery of specific movable property, the award of compensation in lieu of delivery of property is, at present, permissible where the property of the judgment-debtor has been attached and the attachment has continued for at least six months. The amendment seeks to reduce this period to 3 months.

2. It is considered unnecessary to give power to the court to extend it to six months, as has been done in some local Amendments.

1. 14th Report, Vol. 1.

2. See also Civil Justice Committee, (1924-25), Report, p. 407 para. 15.

Order XXI, rule 32

This carries out the recommendation made in the Fourteenth Report1-2. In a decree for specific performance of contract, restitution of conjugal rights or injunction, the court can, at present, levy execution by attachment of the property of the judgment-debtor. Where the attachment has continued for one year, the property may be sold and compensation awarded to the decree-holder. The amendment seeks to reduce this period from one year to six months.

1. 14th Report, Vol. I.

2. See also Report of the Civil Justice Committee, 1925, p. 407, para. 16.

Order XXI, rule 32(5) and prohibitory injunctions

1. Whether the word "injunction" in Order XXI, rule 32(5) is confined to mandatory injunctions is a matter on which there has been some controversy. The Calcutta view1 at one time seems to have been that it covered prohibitory injunctions also; but in a latter case2, it seems to have taken a different view, relying upon the illustration.

2. The English rule, Order XLII, rule 30, R.S.C. 1883 (which continues in the 1962 revision) speaks of "mandatory order, injunction or judgment for the specific performance of any contract".

3. Other High Courts have held that this sub-rule is confined to mandatory injunctions3-4. A change in the language does not appear to be necessary in the present position of the case-law. As has been observed the words of sub-rule (5) are "opposite only to mandatory injunctions and not to prohibitory injunctions5".

1. Sachi Prasad v. Amar Nath Ray, ILR 46 Cal 103: AIR 1919 Cal 674 (Richardson J. But Beachcroft J. withheld his concurrence in this point).

2. See Hem Chandra v. Narendra Nath, ILR 61 Cal 146: AIR 1934 Cal 402, dissenting from Sachi Prasad's case.

3. See case-law reviewed in Joseph v. Makkaru, AIR 1960 Ker 127.

4. Chinmhha Chetty v. Chengalroya, AIR 1950 Mad 237.

5. Ramkrishna v. Board of Revenue, AIR 1954 Nag 245 (248) (Sinha C.J.).

Order XXI, rule 37

1. A recommendation has been made in the Fourteenth Report1 to the effect, that the issue of notice to the judgment-debtor before his arrest should be made discretionary, as it was before the amendment of 1936. The Report observed, that execution by arrest and detention was a very effective and quick way of realisation of money, and that the application to issue a notice in the first instance defeated the very purpose of this mode of execution, by enabling the judgment-debtor to abscond before the issue of warrant. While it did not take the view that no notice was necessary, it expressed the opinion that it should be left to the discretion of the court whether to issue a notice or not, because, if execution by arrest had to continue and was to be of any value, it should not be compulsory for the court to issue notice in every case2.

2. It is, however, considered, that having regard to the fact that execution by way of arrest is a somewhat antiquated mode, it is not desirable to go back to the law before the 1936 amendment. The change recommended, therefore, has not been carried out.

1. 14th Report, Vol. I.

2. Cf. U.P. Judicial Reforms Committee, (1950-51), Report, p. 43.

Order XXI, rule 39 (5)

1. Local Amendments made in implementation of the Report of the Civil Justice Committee1 have omitted the words "in the civil prison" in sub-rule (5). Others-Bombay, Madras and M.P.-are more elaborate. The object in all cases is the same, namely, to provide that sub-rule (5) will cover the costs incurred by decree-holder for subsistence expenses and conveyance charges before the period of actual detention.

2. As execution by arrest is now rare, it is considered unnecessary to make any such change.

1. Civil Justice Committee Report, 1925, p. 407, para. 18.

Code of Civil Procedure, 1908 Back

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