Report No. 27
Order XXI, rule 102
Order XXI, rule 102 provides that nothing in rules 99 and 101 shall apply to resistance or obstruction, etc., by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. The words "a person to whom the judgment-debtor has transferred the property" have created a conflict on this point, namely, whether an involuntary sale is caught by these words. One view is that they are caught1-2
It has also been held that the proper remedy of such a person is to raise the matter under section 47 and that he has no locus standi to maintain an application under rule 100 or to sue under rule 1033-4.
A contrary view, however, has been taken by the Patna High Court, on the ground that since old section 333 of the Code of 1882 was adopted at a time when the doctrine of lite pendente had not been extended to a transfer in execution, rule 102 cannot be given the extended interpretation which section 52 of the Transfer of Property Act has received5-6.
It is considered that the former view is preferable and will prevail. No change in the language is, however, considered to be necessary on this point.
These rules are new, and have been inserted on the lines of the Madras Amendment, Order XXI, rules 104 and 105, which empower the court to set aside ex parte orders, etc., passed in execution proceedings. They have been adopted as useful provisions. Order IX does not, in terms, apply to execution proceedings7. Courts have had to resort8-9 to section 151, but the position in that respect is also not clear10. The amendment will settle the position11.
Section 5 of the Limitation Act has been mentioned in the Madras Amendment as applicable to applications under the new rules. This has been retained in the draft. Though section 5 of the new Limitation Act of 1963 makes its provisions applicable to all applications, it expressly excludes applications for execution. Therefore, it is desirable to mention that section expressly. It may also be noted that there is a certain amount of controversy as to whether the words "special law" in section 29 of the Limitation Act apply to the Civil Procedure Code12.
1. Nagendra Nath v. Ram Krishna, AIR 1960 Cal 299.
2. Begin Chandra v. Hem Chandra, AIR 1939 Cal 709.
3. Khem Chand v. Mool Chand, AIR 1934 Lah 457.
4. Rajaratnam v. Sheikh Hasan Bi, AIR 1926 Mad 968.
5. Harihar Prasad v. Lakhanlal, AIR 1935 Pat 230.
6. Guna Durga Prasad Rao v. Krishna Rao, ILR 24 Pat 695: AIR 1946 Pat 134.
(i) Arunachalam v. Veerappa, AIR 1931 Mad 656 (FB).
(ii) Bharat v. Ashgar, ILR 45 All 148.
(iii) Jethmal v. Sakina, AIR 1961 Raj 59.
8. Mohammad Hanif v. Ali, ILR 55 All 891: AIR 1933 All 783 (784) (FB).
9. Hari v. Bulaqi, AIR 1930 Lah 20.
10. Narayana v. Muthu, ILR 50 Mad 67: AIR 1926 Mad 980 (983, 984).
11. Cf. AIR 1963 AP 127.
12. Kandaswami v. Kannappa, AIR 1952 Mad 186 (192), para. 21-holds that CPC is not a special law, dissenting from the Nagpur decision in Sita Ram v. Chuni Lal, ILR 1944 Nag 250.
Order XXII, rule 4 and ignorance of death
The question whether, where a plaintiff is ignorant of the death of the defendant, delay in substitution of the legal representative should be excused on that ground, has arisen in several cases. Each case would seem to depend on its facts1. No express provision is, therefore, considered necessary.
1. See AIR 1964 SC 215; see also AIR 1951 Sim 257.
Order XXII, rule 4-relaxation of
The question whether the court should have power to grant exemption in respect of the requirement of substitution in a proper case has been considered. Local Amendments giving such power have been made by the High Courts of Calcutta, Madras, Orissa, etc., in respect of a defendant who has failed to appear and contest the suit1. It is, however, felt that such a change should not be made, as it would impinge upon the rule that litigation should not proceed in the absence of the heirs of a person who is dead. These local Amendments have not, therefore, been adopted.
1. See also discussion in the Report of the Civil Justice Committee, 1925, pp. 533 and 177.