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Report No. 27

Order XXXIV, rule 15

1. Under the Allahabad Amendment, where a decree orders payment of money and charges it on immovable property on default of payment, the amount can be realised by sale of that property in execution of that very decree.

2. The question whether a decree creating a charge can be executed and the property sold in execution, or whether a separate suit is necessary, has been discussed in many cases. On the one hand, if, after the decree creates a charge, the elaborate procedure under Order XXXIII has to be undergone, then the object of creating a charge will not be easily carried out. On the other hand, the wide wording of rule 15 suggests, at first sight, a contrary interpretation.

3. Two situations may be considered. One is, where the decree directs sale or provides that the money charged shall be recovered from the property. In such a case there is no difficulty1. But, regarding the second situation, namely, where the decree does not so direct sale and recovery of money from the property, and merely creates a charge on the property, the position is not very clear. The question, of course, is mainly one of construction of the decree2. But still some uncertainty appears to exist.

The question has mainly arisen where the decree creates a charge, but is silent about its enforcement, that is, it says nothing further after declaring the charge. One approach is, that if the decree is executable, then a separate suit is not necessary3-4. Another approach is, that if the amount is declared to be a charge, a sale in execution is irregular5, but it is not void6.

4. Though the case-law does not reveal a direct conflict, the application of the principles laid down in the cases gives rise to problems, and for that reason, the amendment made by the Allahabad High Court seems to be worth adopting. The effect of the amendment would be, that the mere creation of a charge gives a right to sell the property charged7.

Necessary change is proposed.

1. See the discussion in Manindra v. Radha Syam, AIR 1953 Cal 676.

2. As to charge of unpaid vendors see Gurupadappa v. Basappa, AIR 1940 Born 276 (Kania J.).

3. Manindra v. Radha Syam, AIR 1953 Cal 676, explaining AIR 1945 Cal 322.

4. See also AIR 1951 All 141 (147, 154) (FB).

5. Seethalakhshmi v. Srinivasa, AIR 1958 Mad 23.

6. Sudhamoyee v. Jessore etc. Co., AIR 1945 Cal 322 (B.K. Mukherjea and Akram JJ.). (This was explained in the Calcutta case of 1953 on the ground that there was no order for sale).

7. Kaushalendra v. Sen and Sanyal, AIR 1953 All 588 (DB).

Order XXXVII (summary procedure)

In the Fourteenth Report recommendations have been made for-

(a) simplification of rules relating to summary procedure on the lines of the Bombay Amendment, and

(b) extension of summary procedure to subordinate courts in important industrial and commercial towns like Ahmedabad, Asansol, Kanpur and Jamshedpur.

Action under (a) above can be taken by the High Court under section 128 (2) (a) and action under (b) above can be taken by the State Government under Order XXXVII, rule 1 (b) as amended in 1956. It is considered unnecessary to make any provision on these matters of detail in the Code itself.

1. 14th Report, Vol. I.

Order XXXVIII, rule 8

Verbal changes have been proposed in this rule on the lines proposed to Order XXI, rule 581.

1. See Order 21, rule 58 as proposed.

Order XXXVIII, rule 11A

This is new, and is intended to clarify the position as to whether the provisions of Order XXI, rule 57 apply to attachment before a judgment1. The provision has been framed in general terms, as it would not be appropriate to apply the provisions of Order XXI, rule 57, only.

1. See notes relating to Order 21, rule 57.

Code of Civil Procedure, 1908 Back

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