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Report No. 27

Order XXI, rule 95

Order XXI, rule 95 deals with delivery of property on the application of the purchaser of immovable property sold in execution of a decree. Though an express provision to the effect that the auction-purchaser is deemed to be a "party" within the meaning of section 47 is being inserted1, rule 95 has been retained, as indicating clearly the procedure to be adopted.

1. See the amendment proposed to section 47.

Order XXI, rules 97 to 103

1. The general scheme of rules 97 to 103 has been altered on the lines of the amendments proposed in rules 58 to 63. In substance, the amendments carry out the recommendation made in the Fourteenth Report1 to the effect, that the executing court should undertake a full inquiry and determine question of title in cases of resistance or obstruction in delivery of possession, etc.

2. Apart from this, the following points may be noted:-

In the rule corresponding to rule 98, the words "or on his behalf" have been added, to cover cases of resistance, etc., by a person acting without instigation by the judgment-debtor and yet for his benefit2-3.

The question whether persons who did not file a claim or objection to attachment under rule 58 should be barred from agitating their claims under rule 97 or rule 100 (that is, by way of defence to an application under rule 97 or by way of an application under rule 100) has been considered. It is felt, that such a provision should not be inserted. A categorical provision of this nature would not be justified, as there may be cases where, by reason of defect in or absence of attachment or other factors, the person now applying had no knowledge of the attachment, and could not, therefore, have filed an objection under rule 58. A provision requiring such persons to obtain leave of the Court before they agitate their rights in such cases has also not been favoured, as it may work hardship.

The local Amendments to existing rule 98 make certain changes in matters of detail. Thus, the Bombay Amendment to rule 98 provides that the court may order the person or persons whom it held responsible for resistance or obstruction to pay, in addition to costs, reasonable compensation not exceeding one thousand rupees (to the decree-holder or the purchaser), for the delay and expenses caused to him in obtaining possession. The Punjab Amendment to rule 98 provides that the person detained under rule 98 shall be detained at the public expense and the person at whose instance he is being detained shall not be required to pay for his subsistence. It is, however, considered unnecessary to adopt these amendments in matters of detail.

1. 14th Report, Vol. I.

2. Cf the recommendation made by the Civil Justice Committee (1925) Report, pp. 498 and 499, para. 33.

3. Cf section 74.

Order XXI, rule 97 and question of Court fee and Limitation

Under the proposed scheme, the orders in proceedings under rules 97 to 103 will be treated as decrees. Appeals from such orders will thus have to bear ad valorem court-fees. It is, however, felt that a reduction of court-fees in respect of such appeals should be granted by the State Government as has been done in the case of orders under section 47.

Under the proposed scheme, the question of filing a suit to set aside the order passed in proceedings under rules 97 to 103, will not remain. The relevant portion of Article 98 of the Limitation Act, 1963, dealing with such suits, will, therefore, have to be omitted.

Code of Civil Procedure, 1908 Back

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