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Report No. 27

41. Delay in execution-Order 21, rule 58 and rule 97.-Delay in execution proceedings is mainly due to certain dilatory tactics adopted by judgment-debtors. When in execution proceedings any property is attached, there is generally a claim filed under Order XXI, rule 58. If this claim is rejected, a suit is filed under rule 63 of that Order. If the attachment of the property is finally upheld, there are obstruction proceedings under rule 97, followed by a suit under rule 103.

The Fourteenth Report1, contains a recommendation that claim proceedings or obstruction proceedings should be finally determined by the execution court, and that where they are so determined, there should be no right of suit. This recommendation has been made with a view to eliminating delay in execution proceedings. Unfortunately, we have no statistics to indicate in what percentage of cases a suit is filed under rule 63 or rule 103. We are, however, in agreement with the recommendation in the Fourteenth Report, which is based upon certain evidence recorded by the Commission.

1. 14th Report, Vol. I.

42. Court-fees on appeals from orders under Order XXI, rule 58 etc.-We further recommend1, that when an appeal is filed against any order made under Order XXI, rule 58 or Order XXI, rule 97, the court-fee payable should be the same as is at present payable in the case of an appeal from an order under section 47. The State Governments have, by notifications issued under the Court-fees Act, reduced the court-fee payable in respect of appeals against orders under section 47. We recommend that the State Governments should issue a similar notification in respect of appeals against orders under Order XXI, rule 58 et seq or Order XXI, rule 97 et seq, as proposed to be revised.

1. For action by State Governments.

43. Affidavit of assets by judgment-debtor.-We also recommend1, that where a judgment-debt remains unpaid for a certain period, the decree-holder should be entitled to call upon the judgment-debtor to make an affidavit of his assets. The filing of such an affidavit will expedite execution proceedings. In many cases, the judgment-debtor would, for obvious reasons, be unwilling to file such an affidavit, and would be prepared to pay the decretal amount. He cannot also file a false affidavit regarding his assets, because, if he omits any of his assets from his affidavit, he may have to face the risk of other people claiming as their own the assets which he has omitted. Another advantage accruing from such an affidavit would be, that a judgment-debtor who has disclosed any assets in his affidavit will not be in a position to instigate a claim by third persons in respect of such assets under Order XXI, rule 58.

1. Appendix I, Order 21, rule 41.

44. Delay caused by pleas of payment or adjustment.-The provisions of Order XXI, rule 2 are at present responsible for considerable delay in execution proceedings. A judgment-debtor against whom an execution application is filed generally sets up a plea of oral adjustment. In most cases such a plea is wholly without substance, and is deliberately set up to delay the execution proceedings. When such a plea is set up, the court has no option but to record oral evidence which is generally false and worthless.

A plea of oral adjustment thus enables a dishonest and unscrupulous judgment-debtor to drag on execution proceedings indefinitely. The Law Commission in its Fourteenth Report recommended1, that in order that a payment or an adjustment may be recognised by the executing court, it must be in writing. We have proposed the necessary amendment in pursuance thereof2.

1. 14th Report, Vol. 1.

2. See Appendix I, Order 21, rules 1 and 2.

45. Other changes suggested in Order 21 to avoid delay.-Apart from these principal amendments, we have suggested some other amendments in Order XXI, which in our opinion, will expedite execution proceedings1.

1. See Appendix I, Order 21, various rules.

Code of Civil Procedure, 1908 Back

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