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Report No. 27

Order XXI, rule 53(1)

This follows local Amendments1. Where a decree is sought to be executed by the attachment of another decree, the procedure is that the court executing the principal decree (the decree sought to be executed) sends a notice to the court which passed the subordinate decree (i.e. the decree to be attached), requesting the latter court to stay execution of the subordinate decree until the decree-holder or judgment-debtor in the principal decree applies to the latter court to execute the subordinate decree. The amendment seeks to provide, that the judgment-debtor in the principal decree should obtain either the decree-holder's consent or the permission of the attaching court before he applies to the court for execution of the subordinate decree.

A detailed provision to deal with the cases where execution of the subordinate decree has been transferred to another court, has been made in the Madras Amendment2-3. But, as no difficulty has been felt without it, it has not been adopted.

1. Cf. Amendments made by High Courts of Calcutta, Madras, Nagpur Patna.

2. Cf. Order 21, rule 53(1)(c), Madras.

3. See also Civil Justice Committee (1935) Report, p. 408, para. 20.

Order XXI, rule 53 (6)

1. Where a decree is attached in execution of another decree, then, so far as the decree-holder of the attached decree is concerned, the attachment is complete and effective as soon as notice to the court which is to execute the attached decree is given. This notice is given under Order XXI, rule 53, sub-rule (1)1.

But, so far as the judgment-debtor of the attached decree is concerned, the notice of the attachment has to be given to him; and unless such notice is served upon him, any payment by him to his judgment-creditor would give him a proper discharge. To this extent, the provision in sub-rule (6) of rule 53 is, as stated by Chagla C.J.2, "a statutory exception to the principle underlying section 64". As has been explained in the Madras case3, though the general principle under section 64 is that after completion of the attachment, a dealing in regard to the attached property is forbidden, it does not follow that persons acting bona fide without notice should in no case be protected.

2. Now, in place of the "notice" referred to in sub-rule (6), or in addition to that, local Amendments made by several High Courts have inserted "knowledge". See the local Amendments made by the High Courts of Calcutta, Assam, Allahabad and Punjab. Thus, notice of the order through court is not necessary.

It may be noted that a recommendation to this effect was made by the Civil Justice Committee4 also.

An amendment on the subject is proposed.

1. Mahadev v. Janak Singh, AIR 1954 Born 251 (253), para. 3, last sub-para (Chagla C.J. and Dixit J.). See also Lakshminarasimham v. Lakshminarasimham, ILR 50 Mad 677: AIR 1927 Mad 728.

2. Mahadev v. Janak Singh, AIR 1954 Born 251 (253), para. 4.

3. Lakshminarasimham v. Lakshminarasimham, ILR 50 Mad 677: AIR 1927 Mad 728.

4. Civil Justice Committee (1924-25) Report, p. 408, paras. 20-21.



Code of Civil Procedure, 1908 Back




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